People v. Becker

• Decision Date: 24 February 1914
• Parties: PEOPLE v. BECKER.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 274

104 N.E. 396

PEOPLE

v.BECKER.

Court of Appeals of New York.

Feb. 24, 1914.

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

Charles Becker was convicted of murder in the first degree, and he appeals. Reversed and remanded.Arthur Palmer, Joseph A. Shay, and Leonard F. Fish, all of New York City, for appellant.

Charles S. Whitman, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

HISCOCK, J.

At about 2 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 fore part 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 especially 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 assistanceof 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 who 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 9 1/2 court days, during which 3,000 pages of evidence were taken, the defendant was duly 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 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 conversationswith 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 suggestive, 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 unworthy of belief.

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...