New York Court of Appeals Reports
PEOPLE v. SEIDENSHNER, 210 N.Y. 341 (1914)
104 N.E. 420
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v. JACOB SEIDENSHNER,
FRANK CIROFICI, LOUIS ROSENBERG and HARRY HOROWITZ, Appellants.
Court of Appeals of the State of New York.
Argued December 17, 1913
Decided February 24, 1914
A.T. Clearwater, Charles G.F. Wahle and H. Lionel Kringel for appellants.
Charles S. Whitman, District Attorney (Robert C. Taylor of counsel), for respondent.
Herman Rosenthal was shot and killed a few minutes before two o'clock on the morning of
July 16, 1912, immediately after he had walked out from the restaurant of the Hotel
Metropole upon the sidewalk on the north side of Forty-third street between Broadway and
Sixth avenue in the city of New York.
On August 20, 1912, Charles Becker, the four defendants, Seidenshner, Cirofici, Rosenberg
and Horowitz, and Jack Sullivan and William Shapiro were jointly indicted charged with
murder in the first degree in that they had deliberately and with premediation effected the death
Rosenthal was a professional gambler and for some time prior to the homicide had been the
proprietor of a gambling house on Forty-fifth street in said city. Three other men mentioned in
the record, Jacob Rose, Louis Webber and Harry Velinsky (Vallon), were also professional
gamblers. One Samuel Schepps, also mentioned in the record, was an intimate friend of Rose,
and acted for him as a messenger and carried out such directions as were given to him by
Rose. The four last-mentioned men had been friends for years. Charles Becker was a
lieutenant in the police force in the city of New York, and at the time of the homicide and for
some months prior thereto had been the head of what is known as a "Strong arm squad." The
duty of such squad was to see that the law was enforced. It was their particular duty to
suppress gambling houses and other direct forms of vice carried on or maintained by
deliberate violators of the law.
It is the theory of the prosecution that Becker was a partner of Rosenthal in the maintenance
of the gambling house on Forty-fifth street and that Rose was his representative in such
partnership. Becker was well acquainted with Rose, Webber and Rosenthal. Rosenthal's
gambling house on Forty-fifth street was raided by Becker and other members of his squad in
Thereafter Rosenthal became angry at Becker and severely criticised him because of the raid
and because of his alleged failure to protect him (Rosenthal) in the maintenance of the
gambling house. He threatened to expose Becker's alleged relations with him in the gambling
business. It is further claimed by the prosecution that Becker's fear of Rosenthal led him to
desire that Rosenthal be murdered, and that he communicated his desire to Rose. It is further
claimed that to protect Becker and also the so-called gambling fraternity Becker conspired
with Rose, Webber and Vallon to employ men to murder Rosenthal, and that in pursuance of
such conspiracy the defendants were employed to commit the murder.
Becker demanded a separate trial upon the indictment and he was the first to be tried thereon.
He was found guilty and judgment of death was entered against him. An appeal was taken
from such judgment to this court, and the decision upon such appeal is handed down with the
It is conceded that Rose, Webber and Vallon, and, it is claimed, Schepps, are morally and
legally guilty of the murder of Rosenthal. Prior to the indictment the district attorney, with the
approval of the court, entered into separate written agreements with Rose, Webber, Vallon
and Schepps, by which each consented to appear before the grand jury and fully and truthfully
give his testimony concerning the murder of Rosenthal and the criminal liability of Charles
Becker; and the district attorney upon his part agreed with each that he would not be
prosecuted for said crime if it appeared that he did not fire any of the shots at the body of
Rosenthal and that he should remain in prison until after Becker's trial.
The principal part of the testimony in this case relates to the actual occurrences at or
immediately preceding the homicide, and we will refer particularly to such testimony after first
briefly stating the testimony by which the defendants seek to explain the admitted presence of
three of them at the time of the homicide and by which the prosecution seeks to show the
purpose of the defendants in actually committing the homicide.
One Zelig, a friend of the defendants and a man of great influence among those with whom he
associated, was arrested on the 13th or 14th of May, 1912, charged, as a second offense,
carrying concealed weapons. He insisted that he was wholly innocent of the charge and that
certain members of the police force had surreptitiously placed a pistol in his pocket and then
arrested him on the charge as stated. He was held in default of $4,000 bail. Rose was
informed that Zelig and his friends accused him of having instigated his (Zelig's) arrest. The
next day a
conference was held between Rose, Webber, Vallon, Schepps and one Sam Paul, and the
defendants Seidenshner and Rosenberg, at which conference Rose asserted his innocence of
the charge made against him, and Webber advanced the money to pay a surety company to
sign Zelig's bail bond, asserting that he did so "just to show how we all feel about it and to
assure you that Jack had nothing to do with it." (The arrest of Zelig.) Zelig was released on
bail. About June 2, Zelig, Rosenberg and Seidenshner were arrested in connection with a
miscellaneous shooting affray in a part of the city known as Chinatown, in which Rosenberg
and Zelig were slightly wounded. They were arraigned in the Criminal Courts Building and
afterwards as Zelig left the building he was shot and wounded in the back of the head. Zelig
was taken to a hospital and about the same time his bail on the previous charge was increased
to $10,000. While Zelig was in the hospital, Rose met the defendants Seidenshner and
Rosenberg at the residence of one of them at 747 Southern boulevard and at which
apartments Horowitz and Cirofici were frequent visitors and Seidenshner and Rosenberg were
warned by Rose not to go downtown as they would be arrested for carrying concealed
weapons, whether they had the weapons on their persons or not, and Rose testified that at
that interview he said "that Becker said that if they would agree to get rid of Rosenthal and
silence him so he wont cause any further annoyance or trouble for Becker, that then and only
then would they be safe to appear on the streets of downtown. * * * They said `Well all right
we will do anything that you or Becker wants us to do' and I said `Well there is only one thing
Becker wants and that is he wants Rosenthal put out of the way.' They said `All right when is
this to happen' I said `Well now you wait, all I want is to be able to report back to Becker
that you have agreed to do this; now, I said, `you await my orders, I will come here some
night and get you and bring you down to where Rosenthal is and then you will do this, but in
the meantime' I said, `if anybody comes making any inquiries you tell them I have seen you
about the matter.'"
Rose further testified that the same week he saw Seidenshner and Rosenberg at the
apartments on Southern boulevard and he further testified: "They asked me if I had been to the
Tombs to see Zelig. I told them `yes.' They asked me did I discuss the Rosenthal matter with
Zelig. I told them `yes.' I also told them that Zelig was agreeable to them doing anything that I
asked of them but he made the one condition that first he wanted to be liberated on bail. They
told me that as soon as Zelig was bailed out that they would carry out his orders." He further
testified that he told them that Becker was asking every day as to what was being done in the
Rosenthal matter and that he, Becker, was growing very impatient and was threatening all
sorts of things, and they replied, "That he should bear with them a few days longer until Zelig
was out on bail and then Rosenthal would surely be croaked." Subsequently and about July 2,
bail of $10,000 was obtained by Rose and his friends and Zelig was liberated. Rose also met
Horowitz and Cirofici with Seidenshnor and Rosenberg at the apartments on the Southern
Cirofici had been living at the apartments of one Jean Gordon at 2529 Seventh avenue since
the first week in May. Subsequently and commencing about the 26th of June the four
defendants occupied the Seventh avenue apartments until after the homicide, except that
Seidenshner, Horowitz and Rosenberg were away for a few days at Rockaway. Rose testified
that he saw all of the defendants except Seidenshner after they had moved to Seventh avenue,
and had a conference with them there, and "that he told them that Rosenthal was growing
more determined in his threats to expose Becker and that Becker was all the time asking when
those fellows were going to do that job. I had assured Becker, I told them, that they were on
the job, and Becker wanted to know the cause of this long delay, particularly now that Zelig
was out on bail." It is claimed by the prosecution that the murder of Rosenthal was afterwards
planned for July 12, at the Garden restaurant, but that although the four defendants were
present the murder was not then carried out because of a statement made to them by Rose
that he was about positive that they were being watched. The details of the Garden restaurant
transaction are unimportant for this opinion.
On the night of July 15, Rose, Vallon and Schepps were at Sharkey's saloon on Fourteenth
street. They had an automobile but a tire had burst and they procured another, a gray car, of
which Shapiro was the chauffeur, and the three men went in the car with Shapiro to 2529
Seventh avenue where they found Cirofici, and they returned with him to Webber's poker
rooms at Forty-second street and Sixth avenue. The defendants Seidenshner, Rosenberg and
Horowitz were waiting outside of Webber's rooms and they, with the occupants of the car,
but not including Shapiro, went into the rooms and had refreshments. The presence of the four
defendants at Webber's a short time before the homicide is admitted. It is asserted and not
denied that Seidenshner, Rosenberg and Horowitz had been at a rendezvous on Second
avenue which Horowitz admitted was a hangout place for thieves, gamblers and others, and
that they had come from Second avenue to Webber's rooms pursuant to a telephone
communication received from Webber. We now come to the more direct testimony
immediately preceding and at the time of the homicide.
Webber testified that he went out of his rooms and saw Rosenthal at the Hotel Metropole and
then returned and reported to the defendants and that they then left the rooms. Rose, Webber,
Vallon and Schepps testified that they remained at Webber's rooms. Shapiro, the chauffeur,
testified that he went to Sharkey's saloon pursuant to a telephone message received by him at
his stand at Second avenue and Tenth street. He further testified to the trip to 2529 Seventh
avenue and back to Forty-second street and Sixth avenue; that the four passengers including
Cirofici got out of his car and went into Webber's while he remained with his car on the
opposite side of the street; that he remained there fifteen or twenty minutes and that the
defendants (whom he positively identified) came out of Webber's and got into his car; that
Rose told him to drive around to Forty-third street and Broadway near the Metropole; that he
drove up Sixth avenue to Forty-third street and west on Forty-third street until Cirofici
ordered him to turn around; that he stopped his car by Cohen's theatre and the four
defendants got out and walked towards the Metropole; that he stood there about fifteen
minutes when he heard a shot, then about three or four shots, and the same four men that he
carried from Webber's place, being the four defendants on trial, ran to his car; that two had
revolvers in their hands; that he thinks they were Frank and Louis; that two got in one side of
the car and two on the other side. He further testified that Gyp the Blood put a gun to his head
and said: "Hurry up, you boob, drive away." He testified that he drove up Forty-third street to
Madison avenue, to Forty-fifth street, to Grand Central bridge, to Lee avenue, to One
Hundred and Twenty-sixth street, and at that point they got out of the car and told him to
One File, a policeman who was off duty at the time of the homicide, testified that he was in the
Metropole restaurant and was attracted by four pistol shots. He ran to the street and saw two
men getting into an auto about 200 feet away, diagonally across the street, but did not
recognize them; that he obtained another auto and gave pursuit, but failed to apprehend them.
One Brady, a policeman on duty in the center of Times square, heard five pistol shots and ran
to the place of the homicide and found Rosenthal there, dead, lying on his back.
One Hecht, a waiter at the Metropole, testified that he saw Rosenthal leaving the restaurant;
that he heard a shot and "ducked;" that he looked out again and saw Rosenthal fall; that he
heard altogether three or four shots; that he saw at least one man fire after he (witness)
"ducked." He further testified that there were two men on each side and one behind; he did
not see their faces.
One Krause, whose business is that of a waiter, was on the street and he testified that he saw
a bunch of men standing around and he wanted to know what was going on. He further
testified: "I saw four men shooting â€” shooting at the man who came out of the Metropole.
The second man who came out of the Metropole. I saw two men come out; one man came
out and gave a signal; put his finger there. [Indicating.] I saw four pistols; a pistol in the hands
of each of these men. I saw these pistols pointed at Rosenthal." The witness positively
identified the defendants Seidenshner, Rosenberg and Cirofici as three of the men who did the
shooting. He says the fourth man had his back to him and he could not identify him. After the
shots were fired they all ran back to the car and he saw the same four men get into it.
One Luban was in the Metropole when Rosenthal went out. He says Rosenthal went out of
the door and returned and then went out of the door a second time; that he then heard four or
five shots. He positively identifies the defendants Cirofici, Rosenberg and Horowitz as three of
the persons who did the shooting, but is not sure about Seidenshner. He says that they had
pistols in their hands and after the shooting they ran across the street and got into the car.
One Stanich testified that he was near the Cadillac Hotel, forty feet away from the place of the
homicide; that he heard the first shot and turned around and saw the different persons; he
thinks there were four who shot with revolvers; that he saw Rosenthal fall to the ground. He
identified the defendant Seidenshner as one of the men who did the shooting and further
testified that he saw a pistol in his hand, and in the hands of three or four men, but that he
cannot identify the others; that he is sure that two of them had pistols, but the shots were more
than two; that he thinks he heard five shots; that he saw five people in front of the Metropole,
but did not see either Rose, Webber, Vallon or Schepps.
Schepps testified that about 7:30 in the morning of the homicide he went to the Seventh
avenue house and saw the defendants and they asked him where they were going to get the
money; that he went back and saw Rose and then went the second time to the Seventh avenue
house and saw Cirofici and Rosenberg and made an appointment with them to meet Rose at 2:
30 in the
afternoon at Fiftieth street and Eighth avenue; that pursuant to such appointment he went with
Rose and met Cirofici and Rosenberg at Fiftieth street and Eighth avenue, and Rose gave
Rosenberg a package which he understood contained $1,000, and that Rose said to him: "Lay
low for a few days and above all not to talk." Seidenshner, Rosenberg and Horowitz then left
the city and Cirofici left the Seventh avenue house, although his rent was paid for some days
thereafter, and he went to live at another place in the city. It was some time after the
indictment before they were all taken into custody.
The defendants each took the stand and denied all connection with the shooting and with any
agreement to murder Rosenthal. They all admit that they were at Webber's rooms a short time
before the homicide. Each of the defendants testified to a strange man being at Webber's.
They each testified that Rose said to them at Webber's that they would meet certain policemen
by whom he would prove that he (Rose) was innocent of a frame-up against Zelig. Horowitz
testified that the strange man went out of Webber's and came back again after which the
defendants left Webber's, and Cirofici went home. There is no explanation of Rose and others
procuring an automobile and going to 2529 Seventh avenue after Cirofici if he was, without
question, to return at once as is claimed by him. Horowitz further testified that the strange man
went with him and with Seidenshner and Rosenberg toward Broadway and stopped near the
Hotel Cadillac; that the strange man went across the street to Rose, Vallon, Schepps and
Webber; that they continued toward the Metropole, the strange man first, Webber and Vallon
next, and Schepps and Rose behind; that he heard a shot and looked and saw Vallon and
Webber firing; that the strange man fired first and that he with Seidenshner and Rosenberg ran
to the subway and took a train to 2529 Seventh avenue, where they found Cirofici; that he
believed at the time that he and his friends were being shot at.
Seidenshner testified that the strange man with Webber, Rose, Vallon and Schepps went out
of Webber's rooms, and that in about fifteen minutes the stranger came back and said Rose
wanted them to come around to the Metropole and that they all went, but when they got out
on the sidewalk he noticed that the gray car in which Cirofici came was not standing there; that
Cirofici went home and that he and the others went around by the Cadillac Hotel; that the
stranger went across the street to Rose, Webber, Vallon and Schepps, and after talking two
or three minutes they went on to the Metropole in the order stated by Horowitz; that the
stranger fired and Vallon and Webber were shooting; that he thought they were shooting at
him and his friends and that they ran to the subway.
Rosenberg's testimony is to the same effect, and Cirofici's testimony of what occurred up to
the time that he claims that he left the others, is in corroboration of the testimony of
Seidenshner, Rosenberg and Horowitz. Considerable testimony was offered for the purpose
of affecting the credibility of the witnesses for the prosecution and for the defendants
respectively, but such testimony simply bears generally upon the weight of the evidence as it
was presented to the jury, and we cannot extend this opinion to repeat it herein. The important
issues in this case are entirely different from the issues in the Becker case, decided herewith. In
that case Becker's connection with the murder was dependent almost wholly upon the
testimony of Rose, Webber and Vallon, conceded accomplices in the murder, and the
corroboration of such testimony was dependent very largely upon the determination of the
question whether Schepps was also an accomplice. In this case, while the conspiracy is sought
to be shown by the same witnesses and substantially by the same corroboration of such
witnesses as in the Becker case, and the statements of the opinion in that case are applicable
to such testimony, the testimony of prime importance in the determination of this appeal is that
relating to the actual fact of the killing of Rosenthal. The simple question is whether the murder
was committed by the defendants or by others. If the direct testimony given by the witnesses
called on behalf of the People in this case is true, the defendants are guilty of the actual murder
of Rosenthal, and the other testimony in the case is of minor importance.
Counsel for the defendants in their brief have quoted very frequently and at considerable
length from testimony given in the Becker case, not in this record, for the purpose of
comparing the testimony given by witnesses on such trial with the testimony given by the same
witnesses on this trial, and seek by showing differences or inconsistencies therein to affect the
weight to be given in this case to the testimony of such witnesses. This appeal brings up for
review the record in this case, in which the rulings of the trial court upon the receipt or
exclusion of testimony, and the charges of the court to the jury, and the refusals to charge
were made, and upon the testimony in which record the determination of the jury was based.
It is conceded that the attorney for the defendants had a copy of the record in the Becker case
in his possession before the commencement of the trial of this case. If the testimony given by
any witness on this trial was inconsistent with the testimony of such witness on the Becker trial,
that fact should have been called to the attention of the witness when he was on the stand and
an opportunity given to him to explain the inconsistency. The record cannot now be changed,
nor can testimony be read into it from another trial, even if the record in such other trial is on
file as a part of the records of this court. (See People v. Hoch, 150 N.Y. 291, 305; S.C.,
150 N.Y. 566; People v. Rimieri, 180 N.Y. 163, 170; People v. Hughes, 137 N.Y. 29,
37.) The record of testimony in the Becker case is not record evidence within the rule that
record evidence not in the return may sometimes be read by the court on review, and,
moreover, such rule is only applied in support of a decision, and never to secure a reversal.
(Stemmler v. Mayor, etc., of New York, 179 N.Y. 473, 482.)
The witnesses called by the prosecution have been severely criticised for their depravity. It is
quite true that most of the witnesses called by the prosecution and by the defense are of the
criminal and depraved class. In the very nature of things horrible events such as the one
narrated in this record are not witnessed, except it be by mere chance, by people of savory
history and clean, moral lives. This record shows that an awful crime was committed in
defiance of law and honor for some specific purpose and pursuant to a deliberate plan. The
crime was neither an accident nor the result of heated passion. To determine who were the
persons guilty of the crime there was no choice of witnesses. It was necessary to take the
testimony of such persons as saw the occurrence and of those who had knowledge of facts
leading up to the homicide. Notwithstanding the testimony was somewhat unsatisfactory, and
in some particulars contradictory, the conclusion had to be reached by determining the
credibility of the witnesses produced, and as to which of two sets of witnesses were to be
believed. The jury was required to make a determination upon the testimony before it. It is the
province of the jury and not of the court to determine the truth from conflicting testimony, and
within well-defined bounds to determine the relative weight of testimony.
This court in People v. Taylor (138 N.Y. 398, 406) say: "Under our system of criminal
jurisprudence, it becomes the exclusive province of the jury to determine whether the evidence
pointing to the guilt of the accused is so lacking in convincing force as to leave an intelligent
and discriminating mind in doubt as to the truth of the charge contained in the indictment. When
the jury, by their verdict, have declared that no such condition of mental uncertainty has arisen
from a contemplation of the evidence, the prisoner has had the full benefit of the rule of law
which protects him from punishment, unless his crime is established beyond a reasonable
doubt, and the question is not open for review in this court, unless the case is so weak that the
verdict should be set aside because against the weight of evidence, or for other sufficient
cause." (See People v. Katz, 154 App. Div. 44-47; affd., 209 N.Y. 311; People v. Egnor,
175 N.Y. 419-425; People v. Rodawald, 177 N.Y. 408-419; People v. Decker, 157 N.Y.
In People v. Ferraro (161 N.Y. 365, 377) this court, referring to a determination of a
question of fact, say: "It would be hazardous for seven judges of the law * * * to say that the
twelve judges of the fact were wrong * * *. It is impossible for us to say, and the nearest
approach to justice that can be made is to leave such questions to the jury."
In People v. Sanducci (195 N.Y. 361, 367) this court say: "The credibility of witnesses is
necessarily for the twelve jurors who looked into their faces and heard them testify rather
than for the seven judges who simply read the printed record of what they said."
We are of the opinion that the record in this case presented a fair question of fact for the jury
to decide and that the jury's determination shows that they believed the People's witnesses and
disbelieved the defendants and their witnesses. Their verdict should, in our judgment, be
sustained unless some error was committed at the trial that in the interest of justice requires
that a new trial be granted.
Counsel for the defendants allege that error was committed in allowing testimony of
conversations between Rose, Webber and Vallon, or some two of them, or conversations
between one of them and Becker, without the presence of defendants. The evidence of a
conspiracy between Rose, Webber and Vallon and the four defendants to murder Rosenthal
was such as to admit the testimony of either relating thereto. There is some testimony in the
record to show that Becker conspired with the others named to bring about the death of
Rosenthal, and testimony of conversations between Becker and any one of the other
conspirators was properly received in evidence. In any event the admission of conversations
between Becker and either Rose, Webber or Vallon in the absence of the defendants, was not
error, because all of the material testimony relating to such conversations was substantially
repeated to the defendants or some one of them, and they as conspirators with Becker, Rose
and others, or with Rose and others, acted upon the reported conversations with Becker
assuming that they were had, and that the conversations with him were truthfully reported.
The question as to whether Schepps was or was not a co-conspirator is not of the same
importance in this case as it was in the Becker case, and the determination of the question as
to whether he was a co-conspirator as a matter of law, or whether he was a co-conspirator as
a matter of fact, is not of sufficient importance for further discussion.
Counsel for the defendants assert that error was committed on the trial because the defendants
were described by "nicknames, opprobrious and insulting in their character, carrying in their
very terms implications against the morality, the method of life and nationality of the various
defendants." It is necessary in an indictment to name the person charged with crime, and
where the person is known by one or more names it is not error but many times necessary or
desirable as a matter of description to give the several names by which the person indicted is
defendants were named in the indictment as Frank Muller, alias Whitey Louis, alias Whitey
Jack, alias Louis Seidenschue, alias Jack Biegelâ€”Frank Cirofici, alias Dago Frank, alias
Palmerâ€”Louis Rosenberg, alias Lefty Louie, alias Louis Marks, alias Louis Baker, alias
Charles Raymondâ€”Harry Horowitz, alias Gyp the Blood. It was subsequently ascertained
that the true name of Frank Muller was Jacob Seidenshner. The testimony of the defendants
shows that the district attorney was justified in the use of more than one name in describing
Seidenshner, as a witness, testified that he had used the name of Frank Muller, Siden, Miller
and Goldberg; that he had not used the name of Whitey Jack, but had been called Whitey
Whitey, and had been known as Whitey, but not as Whitey Lewis. He also testified that after
the homicide he saw his picture and the name Whitey Lewis in the newspapers and knew that
it referred to him. He further testified that he did not use his family name "because I would not
disgrace my nameâ€”because I was a thief and everything." Frank Cirofici testified to using the
names Harris, Gordon, etc. Louis Rosenberg testified that he had used the names Charles
Raymond. Lewis Baker and Lewis Marks, and that he had not used his own name because he
did not want to disgrace his family.
The four defendants are professional lawbreakers and were commonly known among
themselves and their friends as Whitey, Frank, Lefty and Gyp, and they seldom referred to
one another in
their testimony in this case except by such nicknames. The designation of the defendants in the
indictment and other papers does not appear to have been in bad faith; indeed the use of such
names was common or at least frequent on the part of every one connected with the trial, and
it was in fact the most certain way of identification. The only possible inaccuracy in the use of
nicknames on the trial, as appears by the defendants' own testimony, was in adding words to
the admitted nicknames of Whitey, Frank, Lefty and Gyp, and such added words were not
without evidence to justify their use.
In People v. Everhardt (104 N.Y. 591, 596) the defendant was described in the indictment
as "George Hartman, otherwise called George Peters, otherwise called Mash Market Jake,
otherwise called Charles Coke, otherwise called Charles McGloin. Upon the trial, these
names were repeated by the clerk in the oath administered to the jurors challenged, and the
the defendant objected to the repetition of such names on the ground that it tended to
prejudice the defendant in the minds of the jurors; and he admitted and offered to prove that
name of the defendant was Charles Everhardt. The trial judge stated in reply that he could see
no objection to the clerk inserting in the subsequent proceedings the name which the defendant
asserted was his true name, and referring to the fact that he was indicted under another name."
An exception was taken. Counsel "asked the court to instruct the clerk, in swearing the jurors
and the witnesses that he should designate the defendant as Charles J. Everhardt, and omit the
fictitious names. The court replied that he would instruct the clerk to designate the defendant
as Charles J. Everhardt, and would allow him to state the several other names," and it was
thereafter done during the trial. An exception was taken to the ruling of the court. This court, in
referring to the ruling in the trial court, say: "No material error was committed by the repetition
of the fictitious names. While undoubtedly they might with propriety have been omitted in the
administration of the oath to the jurors and witnesses after the true name was discovered and
inserted in the indictment and other proceedings, yet as such names all appeared in the
indictment and in the evidence it was not error to repeat them whenever it became necessary
to name the defendant, and it cannot be assumed that any legal harm was thereby done to
him." In this case every name in any way applied to the defendants was to some extent used in
the testimony entirely independent of any suggestion by the district attorney. There was no
such excessive use of any nickname of the defendants or either of them by the district attorney
or by the court as will support a claim that the defendants or either of them were prejudiced
thereby. Counsel for the defendants urge that their clients were prejudiced because they were
referred to by the district attorney as "gunmen." When the word was first used in the opening
the attorney for the defendants objected to its use, and the counsel, speaking in behalf of the
district attorney, said: "I will refrain from it." He did refrain from any prejudicial use of it, and
the court was not at any time requested to make a ruling upon or statement to the jury in
regard to the use that was made of such word.
Rosenberg testified on cross-examination, without objection, that five or six months before he
received two revolvers from a drunken man, who said he had purchased them for seventy-five
cents; that he told the man that he would get pinched if he went out with them, and that he
took them from the man and put them in the bottom of his trunk. This occurred at 2529
Seventh avenue, and Rosenberg testified that he sent the trunk away after the homicide, and
that the revolvers were not fired after he received them. The revolvers were offered in
evidence, but were not admitted, although the court marked them for identification as Exhibits
9 and 10. Subsequently the prosecution called a witness who had made a study of revolvers
and their appearance, for the purpose of determining the time that had elapsed since they had
been fired. He was then shown Exhibit 9 and asked if he had an opinion as to the time that had
elapsed since it had been fired and he answered "yes." He was then asked for his opinion. The
question was objected to and the court said: "I sustain the objection. So far as the testimony
appears there is nothing to show but that the pistol may have been fired from the time it was
found in the trunk of one of these defendants up to the time that the witness examined it." The
witness was withdrawn. Subsequently a motion was made by the defendants' counsel to strike
out the testimony given by Rosenberg relating to the two revolvers, which was denied.
Counsel for the defendants then moved that the testimony of the revolver expert be stricken
from the record and the jury be asked to disregard it. The court granted the motion and so
instructed the jury. Counsel for the defendants now insist that the attempt on the part of the
district attorney to obtain an answer to his question to the revolver expert when, they allege,
that the district attorney should have known that no foundation had been laid for the testimony
elicited, was of itself grossly prejudicial to the defendants and reversible error.
We do not see how the defendants could have been prejudiced by anything that occurred
relating to the revolvers or in connection with the revolver expert as a witness.
When Shapiro was cross-examined by the defendants' counsel he gave testimony as follows:
"I know Mr. Marshall, the attorney for Sullivan. I did not say to Mr. Marshall anything about
occupants of this car. I never said anything to him; he asked me who I had in the car that night
and if I knew the men and I said `yes;' he didn't ask me no names or nothing. He didn't ask me
who was inâ€”he said if I knew the men and I did not tell him. Vallon was in the car that night.
Vallon went with me all the way up to the Seventh avenue house from Fourteenth street.
When I got to the Seventh avenue house Schepps left the car; Vallon and Rose stayed in the
Marshall was subsequently called as a witness by the defendants and he was asked about a
conversation with Shapiro which took place about a week before the termination of the
Becker trial. The district attorney said that he would object to any question relating to the
conversation for the reason that Shapiro's attention was not called to such conversation. The
record of what
then occurred is as follows:
"Q. Did Shapiro state to you at that time who the occupants of the car were? [Objected to;
"Mr. Wahle: I drew the attention of Shapiro to that.
"The Court: That precise question?
"Mr. Wahle: That is the thing I am referring to.
"By Mr. Wahle:
"Q. Did he state to you that among the occupants of the car were Schepps and Vallon?
"The Court: Was that direct question asked Shapiro?
"Mr. Wahle: Yes. I do not know the page. I know what I asked about.
"The Court: I will take your word for it, and overrule the objection.
"The witness: May I have the question read?
"The question is repeated by the stenographer as follows: `Did Shapiro state to you at that
time who the occupants of the car were?'
"A. He did.
"Q. Did he state the occasion upon which Schepps and Vallon were the occupants of the car.
[Same objection; sustained; exception. No cross-examination.]
"Mr. Wahle: One moment.
"The Court: No; nothing further.
"Mr. Wahle: I take an exception."
The testimony of Marshall was only admissible to contradict Shapiro. To make the testimony
admissible for the defendants Shapiro's attention should have been called directly to the
question upon which the defendants' counsel proposed to contradict him. Shapiro was never
asked the direct question that was asked of Marshall. In fact there is grave doubt whether the
testimony of Shapiro, that we have quoted, has any reference at all to the occupants of the car
when it went from Forty-second street and Sixth avenue to the scene of the homicide or on
the trip immediately following the homicide.
The defendants' right to have Marshall answer the question, the answer to which was
excluded, was not sufficiently clear for the reasons stated on which to base the defendants'
We have examined every ruling adverse to the defendants upon the receipt or exclusion of
evidence, and also particularly such parts of the record as show according to the defendants
that the court was prejudiced against them and manifested such prejudice to their injury, but
we do not think that unfairness or reversible error were shown.
We have also examined with care the opening address by the assistant district attorney and the
address to the jury by counsel for the defendants and the prosecution, respectively, and
notwithstanding the criticism of counsel for the defendants we do not think that it is necessary
to quote therefrom or comment thereon in detail. We do not think that the assistant district
attorney violated the bounds of propriety or legal right either in the opening address or in his
presentation of the case to the jury. The testimony was complicated and it was the duty of
counsel for the prosecution, as well as for the defendants, to discuss the same from their
respective standpoints, and in doing so unless statements were made that could not have been
corrected if attention had been called thereto on the submission of the case to the jury by the
court, any alleged misunderstanding arising from such statements so acquiesced in ought not to
affect the result.
Counsel has called attention to inferences drawn from the testimony by the assistant district
attorney that are directly opposite to the alleged necessary inferences drawn from the same
facts by counsel for the defendants. It is clear that counsel for the defendants did not at the
time consider that injustice was being done to his clients by the assistant district attorney;
neither did he at the time think that the court had acted in a prejudicial manner towards them.
In his final address to the jury, referring to the defendants, he said: "For the first time in their
lives they have been in a court room where a district attorney has on cross-examination
spoken to them in considerate tones and not bully-ragged them or bulldozed them. Probably
for the first time in their lives they have been before a jury who have listened to their story and
not treated them with contempt, and I venture the statement that probably for the first time in
their lives they have been before a judge who has spoken kindly and gently to them and
treated them kindly and gently and has not treated them as if they were the outcasts of the
world. That is something new in their lives."
At the close of the address of the assistant district attorney, counsel for the defendants said: "If
your honor please, there are a number of statements in the summing up of counsel, particularly
some in the peroration to which under ordinary circumstances I should like to take an
exception, but I feel that I can safely conserve these defendants' rights if your honor will permit
me to send to you three additional requests to charge that I think will cover the situation. May
I have that permission?" The court granted the permission and adjourned court until the
following morning when the charge of the court to the jury was delivered.
At the close of the charge of the court no exception of consequence was taken to it by the
alert and able counsel for the defendants. The language of this court in People v. Pallister (138
N.Y. 601, 603) is applicable in this case, wherein it says: "But it may be observed very
properly, the absence of an exception upon the trial, where the accused has been defended by
counsel known to be able and experienced, deprives the argument of much force, which seeks
to assail in this court the correctness of some part of the proceedings."
Counsel for the defendants had previously submitted sixty-eight requests to charge, many of
which were fully covered by the court in the main charge, and he was permitted to submit nine
further requests to charge. The first of the nine additional requests to charge was as follows:
"The jury in this case are not concerned with the result of the trial of any other person
this indictment. These defendants may be innocent of the crime charged against them and yet
others mentioned in this indictment be guilty; and the fact that the jury may know the result of
the trial of Charles Becker, co-defendant herein, must in no way affect them in the
determination of the questions in this case, as the innocence or guilt of these defendants is to
only by the evidence here presented."
To this request the court said: "I refuse to charge that request in the language presented, but
will charge it in part, that the innocence or guilt of the defendants must be determined solely
upon the evidence before the jury irrespective of any knowledge the jurors may have of the
result of the trial of Charles Becker."
The third request was as follows: "The case is not to be determined upon the opening
addresses of the district attorney or counsel for the defendants. It is the evidence in the case
which is to receive the attention of the jury."
The court: "I charge that, but I add to that, that the arguments of counsel when based upon the
evidence are also to receive adequate attention from the jury."
The fourth request was as follows: "The jury will disregard all references to the character or
fate of one Jack Zelig; he is not a party to this indictment and is not concerned with the issues
in this case, excepting so far as he is involved in the interviews that were had by Jack Rose
with these defendants and the relation of the defendants with said Jack Zelig."
The court in response to the fourth request said: "I decline to charge in the language presented,
as it is incomplete or misleading, but I will charge part of the request, namely, that the jury
must not take into consideration the fate of Jack Zelig."
The court ruled upon the other written requests submitted to him and an exception was taken
to those not charged. The counsel for defendants referring to the statements made by the court
the main charge said: "I ask your honor to charge the jury so far as the skeleton of the
evidence of the prosecution and defense is concerned if the recollection of the jury as to the
differs from that which your honor has embodied in the skeleton then the recollection of the
jury must control and not your honor's recollection."
To this request the court replied: "I so charge and I say in general that if at any time during my
charge I have inadvertently fallen into any error or mistake, touching the evidence or the
testimony of any witness, it is your recollection, gentlemen, that must control and not mine."
We do not find any error of law that requires a reversal of the judgment against the defendants,
or either of them, nor do we find any unfairness toward the defendants that makes a new trial
necessary in the interest of justice.
The judgment of conviction should be affirmed.
MILLER, J. (concurring).
I concur in the opinion of my brother CHASE for the affirmance of this judgment, but I should
not do so if the verdict depended upon the testimony of Rose, Webber, Vallon and Schepps.
Four other witnesses positively identified one or more and together they identified all of the
defendants as participants in the actual shooting of Rosenthal. Three of the defendants were
confessedly at the scene of the murder and the story as related of the fourth coming down
town and returning just before the murder without accomplishing his alleged purpose is
improbable. The explanation given by the defendants of their coming to Webber's poker room
just before the murder and of the admitted presence of three of them at the murder is, if
possible, more difficult to believe than some of the testimony of Rose, Webber, Vallon and
Schepps. The foregoing considerations, together with the fact of the flight and concealment of
the defendants after the commission of the crime, leave no doubt in my mind of their guilt.
WERNER, HISCOCK, COLLIN, CUDDEBACK and HOGAN, JJ., concur with CHASE,
J.; MILLER, J., concurs in memorandum.
Judgment of conviction affirmed.