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,
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 of Rosenthal.
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 April, 1912.
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
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 decision herein.
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, with 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 boulevard.
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 drive downtown.
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--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. 186-195.)
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
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 known. The
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 Frank 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 them.
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 Jack, Jack 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
name--ecause 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 counsel for 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 the
true 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
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
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 the 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
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; sustained; exception.]
"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? [Objected to.]
"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' claim of reversible error.
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 mentioned in
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 be determined only by the evidence
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
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 in
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 evidence
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
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.