People v. Becker

• Citation: 215 N.Y. 126,109 N.E. 127
• Parties: PEOPLE, v. BECKER.
• Decision Date: 25 May 1915
• Court: New York Court of Appeals

215 N.Y. 126

109 N.E. 127

PEOPLE,

v.BECKER.

Court of Appeals of New York.

May 25, 1915.

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

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

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

Martin T. Manton, of New York City, for appellant.

Charles A. Perkins, Dist. Atty., of New York City (Robert C. Taylor, Of New York City, of counsel,) for the People.

BARTLETT.

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

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

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

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

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

[2] This was a proper matter to be considered by the jury, and we must assume that they considered it. It cannot be laid down, as matter of law, that a jury is bound to hold that a specified event has not occurred because its occurrence involves unwise or foolish or blundering conduct on the part of the accused person. Indeed, the propensity of criminals to blunder has long been recognized as a characteristic of great value in the detection of crime. The criminal reports of England and this country are full of cases in which guilt has been fastened upon the defendant by reason of the omission of some slight precaution or the commission of some apparently insignificant act which would have seemed almost impossible in the case of a person of ordinary common sense.

[3][4] Extensive as is the poser of review vested in this court on an appeal from a judgment of death, the law does not intend to substitute the conclusions of fact which may be drawn from the evidence by seven judges for the conclusions of fact which have been drawn from the evidence by twelve jurors, unless we are clear that the view of the facts taken by the jury is wrong. It is our duty to affirm, if the trial was fair and without legal error, and the verdict was not against the weight of evidence. We are to see to it that the trial was fair, and that there was sufficient evidence, within recognized rules of law, to support the verdict; this done, the responsibility for the result rests with the jurors. Guiding our action by these established principles of criminal procedure in capital cases, we do not feel justified in interfering with the verdict.

The case as presented upon the second trial differed materially from the case as presented upon the first. The actual killing of Rosenthal by the gunmen was not controverted, nor was the agency of Rose, Webber, and Vallon in employing them. The question was who instigated Rose, Webber, and Vallon to cause the murder to be done. Were they moved to act by the fraternity of New York gamblers largely represented on the Sam Paul excursion, who dreaded the destruction of their business by Rosenthal's threatened disclosures, or did they hire the gunmen to shoot Rosenthal at the instance of Lieut. Becker? There is nothing to indicate that the gunmen were actuated by any personal hostility toward the man they killed. They were simply murderers for hire. Rose,Webber, and Vallon admit their own complicity in the crime, but claim to have been set in motion by Becker. Upon the truth or falsity of their testimony to this effect depends the guilt or innocence of the defendant. Being clearly accomplices as matter of law (as the court correctly charged), it was necessary, in order to warrant a conviction upon their testimony, that it should be corroborated by other evidence tending to implicate the defendant in the murder.

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” Code Crom.Proc. § 399.

Accordingly, the trial judge properly instructed the jury as follows:

“If the jury find that the testimony of Rose, Vallon, and Webber has not been sufficiently corroborated so as to connect this defendant with the commission of the crime, or if the jury disbelieve the testimony of Rose, Webber, and Vallon in its main...