PEOPLE v. BECKER

HISCOCK, J.

At about two o'clock in the morning of July 16, 1912, in one of the most public portions of the city of New York at such an hour, one Herman Rosenthal was shot to death in the street. While he was a gambler and lawbreaker, his murder aroused great public interest and excitement, first, because of the barbarous defiance of law displayed in the manner of his killing, and, second, because he was about to appear before a grand jury and give evidence to establish improper relationship between members of the police force in said city and unlawful resorts, and wherefrom arose the possibility for suspicion that the police had participated in or encouraged the murder.

I think the record and events of which we may take judicial notice permit it to be stated that this public interest and excitement were sustained and stimulated by daily newspaper reports, apparently emanating from authoritative sources, that members of the police force were thus implicated and that clues were being followed which would lead to one "higher up" in the police force. Soon these rumors were directed specifically at the defendant, who was a lieutenant of police in command of a squad especially coming in contact with gambling houses, and who had been named as a police "grafter" by Rosenthal in an affidavit published in the newspapers just before the murder, and first on July 29th and again on August 20th he was indicted for the murder. He has been tried and convicted under the last indictment.

The underlying theory of defendant's guilt at the trial and upon this appeal which has been advanced by the prosecution and which, as we must assume, was approved by the jury is, briefly, as follows:

It is charged that in the forepart of the year 1912 defendant entered into a partnership with Rosenthal for the equipment and maintenance of a gambling house, one Rose participating in the undertaking as a representative of the defendant; that subsequently Rosenthal became enraged at Becker because of the conduct of the latter particularly in leading a raid on the house and breaking up his business, and thereafter sought to destroy Becker's standing and official character by approaching in turn the newspapers, the mayor, the police authorities and the district attorney with information of his unlawful relations to the gambling business; that Becker becoming alarmed by these attempts formed the purpose of having Rosenthal murdered, and secured promises of help to that end from three gamblers and criminals, Rose, Webber and Vallon, the murder compact between them being struck at a meeting held in a vacant lot in Harlem at night some time in June; that these last named individuals, after various delays and excuses, through the assistance of others who actually fired the fatal shots, finally consummated the plan and procured the murder of Rosenthal.

It is to be well noted that in this theory there is no suggestion that defendant directly participated in the killing of Rosenthal, for, as was frankly stated in his very fair discussion of the facts by the assistant district attorney who argued the appeal, under the People's theory the defendant may have been a thousand miles distant from the scene of the murder when the crime was committed. But the claim is that the defendant accomplished the murder by proxy twice removed through enlisting the murderous help of Rose, Webber and Vallon, and that these in turn hired another set of individuals, known throughout the record as "gangsters" or "gunmen" who did the actual shooting; and that the complete conception of this scheme occurred at a meeting between Becker, Rose, Webber and Vallon in a vacant lot in Harlem on some indefinite date shortly before the murder.

Prompt preparations were made for the trial of the defendant. The governor appointed an extraordinary term for the trial of him and of others indicted with him, and designated Mr. Justice GOFF to preside thereat. The trial commenced October 7th, and after continuing for nine and a half court days, during which 3,000 pages of evidence were taken, the defendant was convicted and sentenced to death.

A limited review of the evidence on which he was convicted is essential to an intelligent consideration of the questions to be discussed on this appeal.

Notwithstanding the zealous efforts of the district attorney, who with most commendable promptness entered upon an immediate investigation of the crime, absolutely no testimony was given on the trial directly tending to connect the defendant with the murder by other than six witnesses. Without their support the People's case utterly fails. These gave evidence of alleged conversations with Becker, either relating to the future commission of the murder, or containing admissions of complicity in its past commission, and because of their prominence and controlling importance for the prosecution, the character and situation of these witnesses merit careful consideration.

One of them, Luban, was produced for the purposes of the trial by the criminal authorities of a neighboring state where he was confined in jail on some conviction or charge whereof the nature does not appear. After being brought to New York and before going on the stand this witness, in a manner which we cannot but regard as significant, was given an opportunity for conference with Rose, the chief witness for the prosecution, and who was immediately to follow him upon the stand. Their evidence was entirely harmonious. Another witness, Hallen, was a degenerate lawyer and convict who also was temporarily delivered from jail to be a witness. In addition to the impeachment of their evidence furnished by their character and by the direct contradiction of other witnesses, much of the testimony of these men is, as it seems to us, inherently improbable and subject to suspicion.

Three of the other witnesses were Rose, Webber and Vallon, gamblers and lawbreakers, already referred to. Undisputedly they were guilty of the murder of Rosenthal. Soon after it occurred their complicity in hiring the men who actually killed him was established, and there was no question that they had forfeited their lives and were subject to the punishment of death. But they claimed that the defendant had instigated them to commit this dreadful crime, and by virtue of this claim they secured from the district attorney, with the consent of the court, as the stipulation recites, an agreement in writing giving immunity to them, conceded murderers, if they would furnish evidence tending to convict Becker, who thus far had only been accused of the crime.

The remaining witness was Schepps, also a gambler and lawbreaker, and the intimate of and more or less dependent upon Rose. While the presiding justice permitted the jury to find that Schepps was not an accomplice of Rose and the others and, therefore, guilty like them of the murder of Rosenthal, some of the members of the court believe that that finding was opposed to the overwhelming weight of the evidence which showed his close relationship with and dependency upon Rose and his admitted presence at stage after stage of the conspiracy, his close proximity to the alleged Harlem conference, his help in assembling the gunmen, his presence at Webber's poker rooms with the other conspirators and murderers just before the crime was committed, and his companionship with Rose when the latter paid off the gunmen after they had shot Rosenthal.

He, too, was testifying against Becker under an agreement of immunity substantially similar in its effect to that which had been extended to the other conceded murderers, and thus we have these four witnesses acting under an agreement sparing the lives which admittedly in the case of three of them, and probably in the case of the fourth, were forfeited, provided they would give evidence to convict the defendant.

Having thus called attention to their character, and to the motives and inducements under which these witnesses testified, I shall not enter upon any extended analysis of their testimony for the purpose of reviewing the defects and inconsistencies which are charged against it by the defendant, referring simply to a few uncontradicted features.

All of the four witnesses last named testified concerning the alleged Harlem conference. Nobody connected with the prosecution or trial of the defendant has doubted that this conference was the very foundation upon which was built the theory of defendant's guilt, for there it was that he, as claimed, definitely enlisted the aid of Rose, Webber and Vallon in the plan for the murder of Rosenthal, and in accordance with which such murder was finally consummated. It would be idle to discuss for a moment the guilt of defendant under the present prosecution unless this conference did take place. Yet not one of these witnesses is willing to fix with any definiteness the date when it occurred, although it must have been only a short time before the murder, and they are not able to agree with any precision on the hour when or the spot where it occurred.

While Becker on their theory was principal in, supervisor and importunate promoter of the plan to murder Rosenthal, the singular circumstance appears that for days before the murder was committed there was no personal conference between him and his agents, but the proposed murder was discussed openly and at times like an incident of subordinate importance between him and Rose over the telephone.

These witnesses in accordance with the terms of the immunity agreement were kept in confinement in a special place of custody and where, as the incomplete evidence which the defendant was permitted to develop indicated, ample opportunities existed for collaboration on the evidence they were to give under their life-saving agreement to convict Becker.

Outside of the evidence given by these six men, it is, to say the least, a grave question whether there is any testimony which under the test required by law corroborates them as to Becker's guilt of murder. There is other evidence which the jury were entitled to believe tending to show a relationship of defendant with Rosenthal in the gambling business, relations and communications between him and one or two of the conceded accomplices, and that he was a "grafter" so called. But to repeat, it is very doubtful whether such evidence, in the manner provided by law, corroborates the testimony of the witnesses named in connecting Becker with the specific act and crime of murdering Rosenthal, and of course if this judgment of conviction is to be affirmed it must be done because defendant is guilty of murder and not because he was guilty of "grafting" or official misconduct, however iniquitous and despicable they may have been.

There are three other features of the People's case developed by its own witnesses which deserve mention and consideration.

It is urged that Becker's fear of Rosenthal's accusations furnished a strong motive for desiring the death of the latter and that this motive greatly supports the theory of the prosecution.

There is no doubt that evidence of motive for the commission of a crime may be important, although it is perfectly well settled that it does not of itself supply the necessary corroboration required by the statute. But the evidence of such motive in this case is not very satisfying. As has been pointed out, the People claim that the murder conspiracy was fully hatched at the Harlem conference, probably in June, and if the existence of that conference is not satisfactorily established the case against the defendant falls in utter collapse. Therefore, the inquiry becomes inevitable whether at that time Becker's fear of Rosenthal was sufficient to lead him to resort to the desperate remedy of murder. The evidence of the People answers this inquiry by showing that at this time Becker was fully advised of Rosenthal's movements; that the latter had failed to secure the ear of the newspapers or of any of the authorities for his accusations, and that in this respect conditions had not changed since, a short time before, Becker had expressed himself as quite indifferent to Rosenthal's efforts.

Again, during the few days intervening the publication of Rosenthal's affidavit accusing Becker of official misconduct, and the murder, all of the evidence, aside from that given by Rose and his co-conspirators, shows that Becker was engaged in strenuous efforts to discredit Rosenthal and suppress evidence corroborating him before the grand jury. While, of course, this latter evidence is not conclusive, it does make one somewhat wonder why all these pains with a full-framed conspiracy pledged to remove Rosenthal before he could reach the grand jury. Certainly it does seem to be a case of defective logic to argue as is done elsewhere that Becker's zeal in trying to discredit and defeat Rosenthal before the grand jury is proof that he had at that very time arranged with some of the same agencies to murder him before he could reach the grand jury.

Various explanations, not altogether convincing, are given by Rose and his associates for the failure to execute more promptly at Becker's request the murder plan formed at the Harlem conference, and which it is said he was constantly and importunately insisting upon. Rosenthal's disclosures showing unlawful police protection of gambling were published on Saturday and Sunday. On the latter day the Sam Paul Association took an excursion, which was attended by some three or four hundred gamblers. Rose and his associates were in attendance, and Rosenthal's disclosures were a subject of universal discussion, in which it is quite needless to say that there was no expression of sympathy with Rosenthal. He was a "squealer," and whatever else happened the upheaval caused by his disclosures boded ill to the gambling fraternity and business. Rose, Webber, Vallon and Schepps were members of and identified with this body, and some or all of them had personal grievances against Rosenthal. The excursion returned Sunday night, and almost within twenty-four hours Rosenthal was murdered, as it is said by the prosecution, under a plan formed by Becker some time in the preceding month, and which had then somehow languished until after this excursion. It is said by the defense that if the exact truth could be known it would be found that the plan to murder Rosenthal was not formulated by Becker in a vacant lot in Harlem in June, but on the excursion of an enraged gambling fraternity a few hours before the killing occurred, and that Rose unintentionally gave illuminating evidence on this subject when he testified that in one of his alleged interviews with Becker he said: "I am going on the Sam Paul outing tomorrow and on it will be Webber and Vallon, and I will have a long talk with them and I am sure by the time I return some definite plan will be agreed upon amongst us to go after this thing (Rosenthal's murder) and get it over with."

If the Harlem conference ever occurred, as claimed by the People, it is urged that two other witnesses could have testified to it. Rose and his associates testify that they went there in two automobiles driven by chauffeurs. The journey from the starting point was several miles. Rose and Webber at least had attained a position of more than ordinary notoriety in their chosen spheres. Becker was certainly a prominent personage. The conference took place in a vacant lot at night — according to some of the evidence, late at night. It lasted a considerable time, and during it Schepps, according to his story, stood and conversed with one of the chauffeurs. This all occurred a comparatively short time before the murder and alleged disclosures implicating the defendant, and it would seem as though the chauffeurs must have remembered something of it. On the cross-examination of Schepps defendant's counsel persistently but unsuccessfully endeavored to learn the identity of these alleged chauffeurs. On the motion for a new trial it appeared, however, that during the trial their identity was disclosed to the district attorney, who procured their attendance at his office for investigation and examination, and then they were not produced on the trial. It was claimed by the People on the motion for a new trial that on such examination they simply declared themselves unable to remember any such trip as the unusual Harlem one. The alleged chauffeurs themselves made affidavits absolutely denying that they ever drove to the alleged conference. Thus Becker stands condemned without any opportunity for a jury to hear these persons who according to Rose and his associates took them to the Harlem conference, but who for themselves solemnly aver in an affidavit that they never attended any such meeting, and it is urged that the mind of an appellate court should recoil from the proposition to take the defendant's life without hearing this testimony, which should go so far toward settling the question whether the primary event in the People's theory ever occurred.

On such evidence and lack of evidence, and also much testimony contradictory of it offered by the defendant, a jury has decided that Becker was guilty of the murder of Rosenthal and ought to be put to death. It is insisted by the defendant with all the earnestness possible that the People's evidence, independent of that offered by the defendant, is so impeached and discredited that it would not afford a safe basis for a judgment in an ordinary civil action and that much less is it sufficient to sustain a verdict which will result in taking a human life, and we are asked to set it aside as against the weight of evidence.

The law does cast upon us in such a case as this the burden and responsibility of deciding before permitting execution whether a verdict is supported by the weight of evidence. That, of course, does not mean that we are to take the place of the jury in passing upon those ordinary questions of the reliability of witnesses and of the credibility of testimony which constantly arise in trials or that we are to overturn the verdict simply because as an original proposition we might have reached a different result. It does mean, however, that we must say if that question should be reached whether, taking into account the undisputed and clear infirmities of the People's witnesses and case, we believe that there is still left such a preponderating weight and balance of apparently worthy testimony as justified the jury in finding that the affirmation of the defendant's guilt was so unclouded by the shadow of any reasonable doubt that the state would be justified in taking his life.

While no one doubts that in the great majority of cases the character and credibility of witnesses and the believeability of testimony should be left to the final determination of a jury, yet the fact that the statute imposes upon us the absolute duty of deciding whether a verdict in a murder case is against the weight of evidence would seem to make it equally plain that the law contemplates the possibility that a jury may be swayed or led into giving an unjust and unwarranted verdict and requires us to correct the error when it does occur. Some of my associates believe that the contention of the appellant is entirely correct and that the present verdict should be thus set aside. But since the consideration of that question might lead to a difference of opinion amongst the majority members of the court, I propose to pass it, expressing no view either way, and proceed to the discussion of another proposition concerning which there will and can be no difference of opinion.

In the presence of such dangerous and degenerate witnesses as have been described and under all the conditions attending and surrounding his case, the defendant certainly was entitled to a scrupulously fair and impartial trial where nothing should be done to prejudice his case or to obscure in the minds of the jurors the elemental question whether the evidence justified them in reaching the conclusion that he was guilty of the grave crime with which he was charged. He was entitled to have his counsel and case treated with that consideration which they justly merited; that not only questions of law should be properly decided, but that questions resting more or less in discretion should be reasonably disposed of; that, however unintentionally, no spirit of hostility and of discrimination on the part of the court should seem to be generated which would envelope his case and permeate the minds of the jury as they listened to evidence and arguments and as they finally came to decide the momentous question of guilt or innocence.

We do not think that the defendant had such a trial. We think that he suffered grievously from the erroneous disposition both of questions of law and discretion.

It is of course difficult to portray in an opinion the atmosphere which seems to have surrounded the trial of a long case. This is produced by many incidents and events which can only be appreciated by reading an entire record, and it would carry an opinion beyond permissible limits to attempt to describe many of these in detail. Even when confined to a summary and illustrations it becomes burdensome in its length and yet this much seems necessary and just to both sides as against a mere statement of conclusions.

At the very opening of the trial there occurred an unfortunate scene which fairly foreshadowed the relationship of antagonism which was to prevail between the trial judge and defendant's counsel. When the trial was moved an application was made by the defense for an adjournment because of the sickness of one of the leading counsel and concerning the good faith of which application the district attorney expressly stated that he made no question. This motion was promptly and, very probably, properly denied. The defendant's counsel then stated that he had another motion for postponement of the trial on the ground that defendant could not obtain a fair trial, upon which he desired to be heard, whereupon the following colloquy took place:

"The Court: Have you embodied these matters in an affidavit?

"Mr. McIntyre: Yes, sir, I recite my facts, and will commit them to an affidavit in an instant, but if you will hear me —

"The Court: I will not hear you.

"Mr. McIntyre: I desire to be heard.

"The Court: I desire that you be not heard upon this matter. If you have a motion supported by affidavit I will hear it.

"Mr. McIntyre: Will you indulge me one instant? * * *

"The Court: No, no, stop; nothing further; I deny your motion.

"Mr. McIntyre: Are we going to be forced to trial in the face of the statement made by the district attorney that Zelig (a `gang' leader who had just been killed) was an important witness, when he knew he was not a witness to be called on behalf of the state? * * *

"The Court: Let us understand each other at the commencement. This is a court of justice. It is not a place for the display of eloquence or emotion. * * *

"Mr. McIntyre: The orderly course of justice has been disturbed by the prosecution.

"The Court: If you continue I shall be under the unpleasant necessity of directing the court officer to remove you out of court."

The incident complained of had occurred in the presence of the court, so that there was little need of an affidavit. Mr. McIntyre was the leading counsel for the defendant who bore the brunt of the subsequent trial. His client was on trial for his life, and this was the introduction of counsel to the panel from which the jury was then straightway selected.

In opening the case, notwithstanding the strenuous objections and exceptions of defendant's counsel, the district attorney committed the serious error of making many statements either in words or to the effect that Becker was a "grafter," and was collecting blackmail and protection money from gambling houses; that as time went on he became more avaricious and bold and that his power became generally recognized by keepers of illegitimate resorts; that he accumulated large sums of money; that he had graft relations with gamblers; that he was a "cool, calm, calculating, grafting police officer," and that he used his office for the protection of "his traffic in the purchase and sale of law enforcement." It will be noted that these statements were not confined to defendant's alleged relations with Rosenthal preceding, and as claimed by the People, leading up to the conspiracy to murder the latter, but were directed to Becker's alleged general misconduct and corruption in no manner connected with the alleged crime for which he was being tried. Sometimes the court stated rather mildly in answer to the defendant's request that the jury be instructed to disregard the statements of the district attorney, that he did not see how they were relevant; sometimes the objection was overruled altogether; sometimes he directed that the word "grafting" be left out; sometimes he sharply criticised the defendant's attorney for entering objections to the statements as they were made.

It could not of course be competent and proper for the prosecution to show as part of its case that Becker had been guilty of general corrupt conduct having no possible relation to the present crime. He was on trial for murder and not general official misconduct and corruption. And equally there can be no doubt about the very prejudicial character of these statements. In its quest for motive the People's entire theory of defendant's guilt rests on the allegation of "graft" in connection with Rosenthal, and the repeated statements to the effect that Becker's misconduct was not confined to Rosenthal but was habitual and flagrant necessarily must have inflamed the minds of the jury. They present no vexed or uncertain question of error. While the courts are, as they should be, ready to make due allowance for some inadvertent slip made by zealous counsel in the heat and struggle of a bitterly contested trial, that consideration of course does not apply to the presiding judge, and no case will be found where there has been overlooked the failure or refusal of the trial court in a doubtful case like this to correct and check such important and repeated errors as these were. ( People v. Fielding, 158 N.Y. 542; People v. Wolf, 183 N.Y. 464; People v. Conroy, 200 N.Y. 356, 369.)

This much is practically admitted by the prosecution on the appeal and the only real answer attempted is that subsequently the defendant introduced in evidence a statement made by Rose to the district attorney wherein the former in giving a purported history of the alleged conspiracy to murder Rosenthal made accusations of extended corrupt conduct by the defendant in making collections from disorderly persons and that this cured the error. I do not think that this answer is sustained. This took place long after the statements of the district attorney had been made and allowed to sink into the minds of the jury and as a practical consideration the authoritative statements of the district attorney would be far different and more damaging than the unverified accusations of such a person as Rose.

But beyond this, as is more fully shown hereafter, the defendant's counsel tried to obtain this statement from the district attorney while Rose was on the stand solely for the purpose of cross-examination and impeachment and the court refused to direct the district attorney to produce it for that purpose as should have been done, to which exception was taken. After this erroneous action on the part of the court, the defendant's counsel did express a desire to put the paper in evidence, manifestly for the purpose of contradiction and impeachment, and finally through the action of the court he was forced into an agreement before seeing it that if the district attorney would produce the paper he would put it in evidence. Under such circumstances we think that the effect of the paper should have been limited to the purposes and extent of contradiction and impeachment for which defendant's counsel desired it and that it should not be regarded as evidence in other respects for the purpose of curing the error referred to.

The taking of evidence then commenced.

It may be stated very briefly but accurately that repeatedly without any objection, complaint or request by the very able and alert district attorney, the court on its own motion criticized the defendant's counsel for some little peculiarity in the form of his questions which was utterly innocuous; intervened to protect the People's witnesses on cross-examination; objected to and excluded questions asked by defendant's counsel and on one occasion when such counsel asked if the district attorney would concede a fact about which apparently there was no dispute, the court ruled for the district attorney, "No, I will not let him concede it."

At times on making an objection or asking a question, which does not appear from the record to have been contumacious or ridiculous, or on attempting to make a suggestion or give a reason in what seems from the record to have been a respectful manner, defendant's counsel was told that he was "becoming trivial," and commanded to "sit down," or "Mr. McIntyre, you know better than to object," or that "there is no necessity of being so explosive about it," or "Now wait, stop that manner," or "You will save time by not indulging in so much talk," or "No argument." Perhaps in the interest of exactness we are justified in quoting two passages, the first of which occurred on the cross-examination of the People's important witness Luban.

"The Court: This has been all gone over. I will declare this examination closed if there be no further question. The witness has been under cross-examination for two hours and a quarter.

"Mr. McIntyre: I can't help it, your Honor.

"The Court: It will be helped unless you put the question. No discussion at all. I have told you what I will do."

In the other case, when defendant's counsel addressed to the witness a question, the following occurred:

"The Court: How is that material?

"Mr. McIntyre: I am going to show that there was a conversation.

"The Court: Not what you are going to show. * * *

"Mr. McIntyre: I wanted to show that there was opportunity to conspire and confer.

"The Court: Come to order. I shall not hear what you wanted to do. I will only hear questions.

"Mr. McIntyre: Your Honor asked me how it was material.

"The Court: I asked the district attorney."

The district attorney had taken no part in the incident.

At other times haste seemed to become the essence of the trial and defendant's counsel on asking some question or requesting some not unusual indulgence were harshly admonished to "get along" or "go along," or "time is too precious."

On one occasion when the leading counsel for defendant pleaded weariness and asked that his associate might take his place in the cross-examination of a witness, the request was summarily denied. On another occasion it was proposed as an apparent reason for denying counsel's request for an adjournment that the cross-examination be turned over to his associate.

With one exception, so far as we are able to discover, every appeal by defendant's counsel to the discretion of the court for an adjournment, for the very common leave to reopen the examination of a witness in order to correct some inadvertent omission or utilize on cross-examination of a hostile witness some newly-acquired information or to call a witness who had been absent was denied, whereas applications of a similar character on the part of the People were quite uniformly granted.

A witness named Shea was an important one for the defense, and he was cross-examined at considerable length by the People. At the close of such cross-examination the following occurred:

"Mr. Hart (defendant's counsel): I just want to ask one question.

"The Court: No. Call your next witness.

"Mr. McIntyre: We desire to call the witness for several questions.

"The Court: I shall not permit you. Time is too precious."

It was no exception that the district attorney, without objection or criticism, was allowed a redirect examination of his witnesses.

At the close of the original examination of Schepps the following occurred:

"Mr. McIntyre: I don't think I can conduct the cross-examination any further on the main issue. I am too exhausted. I am too tired.

"The Court: Let us have no more about exhaustion. We have heard enough about that.

"The Court: * * * Have you another witness waiting, Mr. District Attorney?

"Mr. Whitman: Mrs. Rosenthal has been waiting all day. * * * She appears to be exhausted. I will call her if your Honor thinks best. Her examination will take some time.

"Mr. McIntyre: I join in the request. Wont your Honor please adjourn to-night?

"The Court: Yes."

On some occasions the adverse rulings of the trial judge passed beyond the limits of discretion and were erroneous as matter of law. On the cross-examination of Vallon, one of the confessed accomplices and murderers, he was asked about the immunity agreement which had been executed with the district attorney, and was quite meagre and inaccurate in his evidence about it. Thereupon the district attorney was asked, and declined to produce it unless ordered so to do by the court, and the court refused to so order. Of course it was proper to show on the cross-examination of this witness that he was testifying against the defendant under an agreement that in consideration of so doing he should be turned free, and if possible wring from him some admission that his testimony was influenced by this great reward, and for the purpose of such cross-examination defendant was entitled to have the written agreement produced and to have the court so direct its officer, the district attorney. An attempt to conduct a cross-examination based upon its provisions without production of it would have been futile, and speedily would have been forbidden by the court.

It cannot be said that this error was corrected, because long after Vallon had left the stand and the opportunity for such cross-examination had passed the court did direct that this agreement be produced, and it was placed in evidence by defendant's counsel.

A somewhat similar occurrence took place on the cross-examination of the People's witness Schepps. After the murder Schepps fled to Hot Springs, Arkansas, and subsequently the defendant took the evidence of various apparently reputable people there concerning statements and admissions by him which seriously impeached the testimony which he gave for the People. Those commissions had been returned and were sealed and under the control of the court at the time of the trial, and on the cross-examination of Schepps the defendant's counsel repeatedly urged that the court should order them opened so that reference might be made to the evidence of these witnesses for the purpose of framing exactly, as was necessary, questions to be put to Schepps as a basis for the impeaching testimony. This the court refused to do unless counsel would agree to read the commissions in evidence. The request of counsel was a reasonable one and in the interest of expedition. The ruling was objectionable, and even if it be true that finally the trial judge with a somewhat labored explanation did reverse his action, and counsel secure the benefit and use of the commissions as requested, that does not eliminate the appearance of unnecessary embarrassment and obstructions imposed upon him in the trial.

Again, on the cross-examination of the People's witness Rose, it developed, as has already appeared, that he had prior to the trial prepared and given to the district attorney a statement or confession relating to his participation in the murder, and of which a purported copy had been published in the World. Defendant's counsel tried to utilize the latter for purposes of cross-examination, but on the objection of the district attorney this effort was stopped, He then asked the court to direct the district attorney to produce the original for purposes of cross-examination of Rose. This the court declined to do, and it was not until several days after Rose had left the stand that defendant's counsel obtained from the district attorney this paper after he had been forced, as we think it may fairly be said, by the latter and the court into an agreement before seeing it to put it in evidence as a whole, and the court had even gone to the extent of formally compelling the defendant's attorney to modify his description of it "as a confession or statement to the district attorney," so as to conform to what seemed to be the somewhat sensitive desire of the latter to have it known as "a paper."

Rose, Vallon and Schepps were confined in a special place of detention pending the trial. They were engaged in the common undertaking of attempting to save their own lives by placing in forfeit that of Becker. As a matter of common sense there can be no doubt that it was important to know whether they were in constant communication with each other, and as matter of law there can be no doubt that it was proper to show this on cross-examination of any one of them. The exclusion of such evidence was error of law, and on such a plain and important point it is no answer to say that somewhere else in the case there appeared some evidence from which a jury might conjecture the existence of opportunity for conference and collaboration. The defendant ought to have been allowed to examine fully, pointedly and without embarrassment each and every one of these conceded conspirators concerning the time they had spent in fashioning a harmony of evidence by which they sought to convict him.

The trial judge assumed what seems to us to have been a different attitude toward different witnesses. One called by the People, like Ryan, who apparently failed to give expected or satisfactory evidence, and another like Reich or Sullivan, who gave testimony in behalf of the defendant, were treated with considerable harshness, even considering all of the latter's alleged defects, and subjected to examination and admonition by the court which plainly implies to our mind the intimation as it must have to the jury that they were committing or were liable at any moment to commit perjury. On the other side was the witness Schepps who after various negotiations returned from Arkansas with an assistant district attorney for the purpose of being a witness against Becker. There can be no possible question concerning the character of this man or concerning the extent to which the truthfulness of his evidence as a whole was impeached. On his cross-examination the court volunteered to inform him that he might decline to answer certain questions on the ground of privilege; he was excused by it from answering directly certain questions which it was proper should thus be answered and he was allowed to insult the defendant's counsel without rebuke while the defendant's counsel was sharply admonished that he must give the witness fair treatment.

In the cases of at least four witnesses questions asked by the defendant's counsel were excluded or the examination terminated, the exclusion in some cases being accompanied by the peremptory refusal of the trial judge to hear any argument or explanation and then the witnesses were subsequently recalled by the district attorney on his own motion or on the order of the court and the defendant's counsel permitted, and, when he declined so to do, the district attorney ordered for him to put the questions which had been thus excluded. Apparently the court considered that substantial error had been committed, as it certainly had, in the exclusion of some of the questions and by this unusual and, for the defense disadvantageous method, the attempt was made to cure the error. It does not seem to us to be contumacious conduct or to evidence an undue struggle to secure exceptions that under the circumstances of this case long after a witness had been dismissed and the connection of his evidence lost, counsel should refuse to relieve the court from any error which may have been committed, by bringing in evidence which had been improperly excluded, and which then had lost its value for the defense.

Rose, in addition to being a professional lawbreaker and one of the conceded murderers of Rosenthal, who had procured immunity from the death penalty by agreeing to give and giving evidence to convict Becker, was apparently a person of quite superior intellect and shrewdness and was especially relied on by the prosecution to sustain its theory and fasten the charge of murder on the defendant. He was described by the trial judge as "manifestly the most important witness for the prosecution." He was the first one of the conceded conspirators and accomplices to be placed on the stand by the prosecution and the others closely followed the line of evidence given by him. His direct examination by the district attorney commenced with the opening of court at ten o'clock and continued with a short intermission for luncheon until 2:30 in the afternoon and was of the most important character, covering a very wide range. He was then taken by the defense for cross-examination which was continued without break or request for indulgence until after six o'clock, when a request was made by defendant's counsel for an adjournment which was quite peremptorily refused by the court with the closing remark: "Mr. McIntyre, we will have no further discussion about the matter." The question came up a second time, when in answer to the rather harsh criticisms of the court concerning his failure to understand some evidence defendant's counsel protested that he ought not to be subjected to criticism in view of the extraordinary endurance strain to which he was being subjected. Finally, at half-past eight, after having been in court for ten hours and a half with only a short intermission, defendant's counsel asked for an adjournment in order to get something to eat. The court having refused this request and again criticised the counsel, he started to continue his cross-examination, but after asking a few questions stated that he was physically unable to continue the examination and requested an adjournment. The court with fresh criticism stated: "No good reason whatever appears for an adjournment. There yet remains three hours. Counsel may have them." And after some further colloquy in which defendant's counsel protested that he desired to ask further questions but was physically and mentally unable to do so, the court declared the cross-examination closed and dismissed the witness. At the time this occurred the witness had not been cross-examined at all concerning the Harlem conference and only meagerly concerning the Sam Paul excursion and possibly other matters. The adjournment finally occurred at 8:50 o'clock Saturday evening after the court had been engaged in the trial with long sessions since the preceding Monday morning, and during which the same counsel who was cross-examining Rose had been bearing the heavy burden of the trial for the defendant.

Subsequently the trial judge to justify his course stated that it was in the interest of justice and for the benefit of the jury, the defense and the prosecution that the entire examination of Rose should be concluded at one continuous session. "There should be no break; there should be no opportunity for him to re-create a story if it was false."

It seems quite unnecessary, as the result of the most ordinary experience, to discuss the proposition that a jury, unaccustomed to any such confinement, at the end of a week would be able beneficially to concentrate their interest and attention on the examination of a witness after it had been continued for ten hours. It is sufficient to say so far as the defense is concerned that it did not request any such purported protection from the trial judge as he was giving, but, on the other hand earnestly protested against it. Therefore, the prosecution alone must have derived any benefit resulting from this course and the question is, was it justified?

It is to be admitted of course that the duration of examination of a witness must be to a considerable extent under the control of the trial judge and that he has the power if it is unduly and uselessly protracted to finally place a limit upon it. The cross-examination of Rose was continued through six hours, but it is to be remembered that his direct examination by the district attorney who was fully advised what to ask him occupied nearly four hours; that a cross-examination of an astute and unscrupulous witness to be of any value cannot proceed with the directness which should characterize a direct examination, but of necessity must often approach a subject in an indirect and roundabout manner, and, moreover, that during the final two hours Rose's cross-examination was conducted by counsel after he protested that he was exhausted and was begging for indulgence and an opportunity to procure food.

But, beyond all this, it is perfectly clear that the mere loss of time in the examination of this witness was not the important consideration with the trial judge. The day before, although the hour of adjournment had not arrived, court was readily adjourned at the request of the district attorney on the announcement of his purpose next to call this witness. Even then, although it was evident that the witness would be a most important one and that his examination would be protracted on both sides, the court gave expression to his unconditional determination that the examination of the witness must be concluded in one day. And, again, when the adjournment on Saturday finally took place, the trial judge indicated that the defendant's counsel might continue his cross-examination for three hours more if he desired, but that it must be closed that night.

Thus we find the controlling purpose of the trial judge not economy of time or duration of examination but the determination that the defendant's cross-examination should be closed on the same day as the direct examination, and we must rely somewhat on conjecture for an explanation of the ultimate and precise reasons which induced him to take this view of his duty.

It is earnestly insisted by the defense that the purpose was to prevent it from having an opportunity to cross-examine Rose after examining and considering during the adjournment his evidence on the direct examination for the purpose of detecting weaknesses and inconsistencies therein, and thereby becoming better enabled to force him to "re-create" his story; also that it permitted Rose, with his cross-examination fully completed, to return to a conference with Webber, Vallon and Schepps who immediately followed him upon the stand and thereby more surely secure full and complete accordance in all of their evidence.

It is unnecessary to consider this claim of the defendant and whether the trial justice may have been influenced by any such consideration. I assume for the purposes of this discussion that his rulings were inspired by motives which he deemed to be praiseworthy and in the interest of justice. But nevertheless and however commendable these may have seemed, in determining whether his rulings were erroneous and injurious to the defendant it becomes necessary to consider what the results of them were, and I am obliged to confess that the substantial and apparent consequences were those suggested by the defendant.

Rose was concededly the most important witness of the People. If, as claimed by the defense, a wicked conspiracy was framed by him and his associates to throw upon the defendant the responsibility for Rosenthal's murder and thereby secure immunity and save their lives, Rose was clearly the inventor and chief promoter of this conspiracy. He was not only in custody but under the supervision of the district attorney's office and, therefore, there was no danger that he would be spirited away or tampered with during an adjournment even if any one had been willing to engage in such an enterprise, which we do not at all assume.

The most apparent danger was the one of a shift or "re-creation" in his evidence which seemed to affect the mind of the trial justice. This danger if it existed was one which threatened the prosecution. No "re-creation" of his story was a source of danger to the defendant, for no matter what form it took, an inability or unwillingness on the part of Rose to tell upon cross-examination after adjournment the same story which he had related upon his direct examination would discredit him and inure to the benefit of the defense. We do not think that it was the duty of the trial justice to protect the prosecution against this danger by any such unusual course as was pursued. The defense should have had an opportunity for a searching, complete and advantageous cross-examination of Rose such as was not afforded at the end of long and unusual hours when counsel was exhausted mentally and physically. We think that the ends of real justice in a case where a man's life was at stake were not promoted but rather were defeated by a course which prevented such a cross-examination even though it should have disclosed additional weaknesses and defects in the witness' testimony which would have made it inadequate to sustain as a corner stone that burden of the People's case which was imposed upon it.

Whatever complaints may have arisen concerning other feature of trials, there has not been, so far as I am aware, any disposition to criticise or curtail the opportunity for a full and satisfactory exercise of the right of cross-examination and concerning which it has been written by a distinguished authority: "Cross-examination as a distinctive and vital feature of our law. For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience." (2 Wigmore on Evid. § 1367.)

It is perhaps unnecessary to have spent so much time in discussing this unfortunate incident because of what was subsequently done by the court and district attorney and which practically amounted to a confession of error. At the close of the People's case and after Webber, Vallon and Schepps had all been sworn and testified in harmony with Rose and after various other witnesses had been called and several days had elapsed, the assistant district attorney recalled Rose for the ostensible purpose of asking a few not very material questions, most of which, without any struggle on his part, were ruled out by the court. After this Rose was tendered to the defendant "for further and complete cross-examination" subject to the permission of the court. The court very graciously and promptly permitted, but the defendant's counsel declined to accept, the tender. It is, however, urged that this permission cured the error of the course originally pursued by the trial justice. It is difficult for me to see how this argument can be made seriously.

It very often may happen that an error of the trial court in excluding some limited and well-defined piece of evidence may be fully and fairly corrected by a reconsideration of his ruling and the admission of the evidence. But that is not at all this case. Any cross-examination of Rose had for its object the impeachment of his evidence as an entirety. Days had elapsed since he had left the stand during which his evidence had been permitted to lie in the minds of the jury, and hundreds of pages of evidence of other witnesses had been given. His associates had followed him upon the stand and completed their testimony. It is fair to assume that the district attorney had warned him as his principal witness that the offer would be made to permit his further cross-examination. Nothing indicates that the counsel for the defense had received any such notice of what was to be done and thus given any opportunity to prepare for it. As has been stated, the prior examination had occupied ten hours and filled hundreds of folios. The court doubtless would have forbade any further cross-examination which covered ground already traversed, and on the other hand it would have been practically impossible for counsel to remember all that had occurred. Under such circumstances the hour for profitable cross-examination by the defense had passed. All connection had been lost. The attempt to exercise it would have been profitless, and the only important result would have been to cure the errors of the court by sacrificing the rights of the defendant, and this course we do not think that defendant's counsel was called upon to pursue.

In his charge at the close of the trial the presiding judge defined with accuracy many of the principles of law which governed the jury in their consideration of the evidence and in the disposition of the questions of fact. He then outlined in much detail and most effectively the claims of the prosecution and the evidence which had been produced to support those claims, leaving it to the jury, with few and meagre exceptions, to evolve from their own unaided memories the recollection of any arguments or evidence in behalf of the defendant which tended to contradict and rebut such arguments and evidence of the prosecution. In his extended remarks concerning the witness Rose and which seem to us to have assumed somewhat the form of an argument in favor of his credibility, no attention is called to the fact that he had saved his own life by agreeing to give evidence against Becker; no reference is made to that aspect of the case so vigorously urged by the defendant that he and his associates had framed and were testifying under a conspiracy to convict Becker for the purpose of saving themselves and that the harmony of their testimony might be the result of such conspiracy rather than proof of truthfulness; no reference is made to any of the many witnesses called by defendant to contradict the People's evidence.

In People v. Fanning ( 131 N.Y. 659, 663) it was thus written by Judge PECKHAM on the subject of marshalling the evidence by the judge in his charge in words which we think are sufficiently pertinent to render any comment unnecessary. He said: "In a criminal case we think the judge has the right, and indeed it is his duty to present the evidence to the jury in such light and with such comments that the jury may see its relevancy and pertinency to the particular issue upon which it was admitted, and thus be better qualified to appreciate its character and weight and to determine its credibility. These questions are for the jury, but it is proper that a judge should assist the jury in marshalling the evidence so that they may the more readily and intelligently come to a conclusion which shall be satisfactory to themselves, consistent with the evidence and in accordance with the law. The judge should do this in a fair and impartial manner, having due regard to the rights of the defendant and with a serious and anxious desire for their preservation."

As was anticipated, we are quite aware at the end of this statement of some of the occurrences and rulings upon this trial that it does not adequately or satisfactorily reproduce the impressions which have been created by a study of the entire record and yet it will perhaps sufficiently for the purposes of this opinion illustrate and indicate the attitude of the trial judge toward the defense and which was in marked contrast with the harmonious relations which prevailed between the court and the prosecution.

It may be freely admitted that some of these occurrences and rulings considered simply by themselves are not of great importance and might be disregarded even in this case. Still others of a more important character considered by themselves would probably be disregarded in a case where the evidence of guilt was so clear that we could conscientiously and honestly believe under the obligations imposed upon us that justice had been done in spite of them, for there need be no doubt that in a case of clear and manifest merits this court will exercise the power conferred upon it and disregard errors which in its opinion have not interfered with the ends of justice. It has done this so repeatedly and uniformly that no citation of authorities is necessary.

But we are not thus considering these occurrences and rulings singly or in groups of two or three and we are not considering them in a case of clear and convincing merits where, for instance, there is no question concerning the homicide by the defendant and where reliable evidence leaves little chance for doubt concerning the existence of those other elements which enter into the crime of murder. We are considering them as an entire series in a case where proof even of a distant connection by the defendant with the actual homicide rests upon the testimony of degenerates and criminals, a majority of whom had made a bargain to save their own lives by helping to swear away that of the defendant and in whose characters nobody has at any time claimed to discover any trace of such conscience or moral sense as would be any more bounden by their oaths as witnesses than by the blowing of the wind.

Under such circumstances we are unwilling to say either that these rulings as a whole did not involve substantial error or that it is so clear that the defendant should be executed that they may be disregarded. On the contrary, we believe that the very opposite of these propositions is true; that these errors, certainly in the aggregate, are so substantial and serious that they ought not to be disregarded and the defendant sacrificed. ( People v. Greenwall, 108 N.Y. 296, 302; People v. Fielding, 158 N.Y. 542, 550.)

So far as these erroneous rulings involved questions of law it is unnecessary to discuss them at greater length for the principles applicable to their consideration are familiar.

So far as concerns rulings upon questions ordinarily classed as discretionary, let it be distinctly said that we have not been unmindful that a trial judge may inadvertently err and should have a fair opportunity to correct his inadvertence, and that such a judge must and should be invested with large powers of discretion and authority to the end that the trial may proceed with order and justifiable expedition to its final conclusion. If it be at all necessary specifically to recognize and reaffirm these principles, we do so.

Neither do we overlook the argument in this connection that in this case the defendant's counsel took several hundred objections and that whatever discretion was exercised against him by the presiding judge was but just repression and condemnation of methods which were obstructive and unwarranted. As we look at the record in the deliberate and undisturbed examination of an appeal we can readily perceive that the counsel made technical and useless objections and unnecessarily repeated them, and for that we have no commendation. But it must be admitted in extenuation of his conduct that the perusal more than once of this long record fails to disclose a single occasion when he appears to have been contumacious or intentionally disrespectful to the court, and it at least is not remarkable or unusual if zeal for his client, the complexity of legal questions arising in proof of conspiracy, the discredited and abandoned character of some of the witnesses being sworn against him, a sense of great responsibility, fatigue and nervous strain incidental to long hours and the appreciation perhaps of a pervasive atmosphere of hostility led him to decline to make concessions towards the conviction of his client and to take technical and superfluous objections and to indulge in cross-examinations which may now seem tedious. But of course it is not and will not be claimed that these errors were a reason for denying to him and to his client on trial for his life those rights, whether of law or discretion, to which they were reasonably and fairly entitled.

The rule of discretion to which we have referred as abiding with a trial judge rests for its foundation upon the conception of a judgment exercised at every stage with open mind, fairly and impartially and in the interest of exact justice between People and accused, and when we find extending throughout a trial a series of rulings so repeatedly and consistently adverse to one side even upon reasonable requests as to indicate that the trial judge has yielded, however unconsciously, to a feeling of hostility and, with whatever praiseworthy motives, to the thought that presumptively justice will be best subserved by generally and constantly denying the requests of one side, we must conclude that there has been a loss of that open-minded discretion and well-balanced judgment which the law contemplates, and the party who has been injured by such abandonment is entitled to relief. It is at once a compliment and a heavy responsibility, the influence which an able and forceful trial judge may exert in a case of life and death on the minds of jurymen who are alert to discover the impressions produced upon his more experienced mind by the course of the trial, and when his attitude, although unintentionally, seems to portray hostility to and disapproval of one side there must necessarily result an impairment of that free and unbiased verdict which under our system of jurisprudence is regarded as essential to the administration of justice.

The fundamental demand of our law is that the accused shall have a fair trial, and that if that right has been infringed, not in respect of mere technicalities but in substantial matters, and however undesigned, he shall have another opportunity to meet his accuser and establish his innocence. That in our opinion is the present case. Under the rulings of the court the defendant did not have that manner of trial which the law guaranteed to him. His counsel was hampered and embarrassed; his case was discredited and weakened; full and impartial consideration by the jury was impeded and prevented. He never had a fair chance to defend his life and it would be a lasting reproach to the state if under those circumstances it should exact its forfeiture. ( People v. Wood, 126 N.Y. 249, 269; People v. Barberi, 149 N.Y. 256; People v. Davey, 179 N.Y. 345, 347; People v. Wolf, 183 N.Y. 464; People v. Freeman, 203 N.Y. 267, 271; People v. Kinney, 202 N.Y. 389, 397.)

The principle of what was written by Judge WERNER in the Davey case, although said under other circumstances and in the case of a different crime than murder, is cogently applicable. The case was one where from the nature of the offense charged some of those feelings of popular prejudice and passion were liable to be aroused which it is contended were not lacking in the present case. He wrote: "There are cases, however, in which apparently technical errors may be so prejudicial as to produce the gravest injustice. This may be particularly true of a case in which a defendant, accused of an abhorrent and detestable crime, finds himself confronted at the very threshold of the court room, with that subtle, pervasive and almost ineradicable prejudice which the bare charge of such a crime may engender against him, in the minds of those who are to pass upon his guilt or innocence. * * * In such cases reason needs to be safeguarded from prejudice by everything that caution and justice can suggest * * * so that jurors may, as far as possible, be unbiassed and impartial."

And as was again said by Judge VANN in People v. Wolf: "An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but also upon the trial judge. However strong the evidence against the defendant may be, if she did not have a fair trial, as shown by the rulings of the court * * * the judgment of conviction should be reversed and a new trial ordered so that she may be tried according to law." (p. 472.)

The judgment of conviction and order denying a new trial should be reversed and new trial granted.