People v. Buchalter

• Decision Date: 25 November 1942
• Citation: 45 N.E.2d 225,289 N.Y. 181
• Parties: PEOPLE v. BUCHALTER et al.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 181

45 N.E.2d 225

PEOPLE

v.BUCHALTER et al.

Court of Appeals of New York.

Oct 30, 1942.

Reargument Denied Nov. 25, 1942.

See 289 N.Y. 244, 45 N.E.2d 425.

Appeals from Kings County Court; Taylor, Judge.

Louis Buchalter, Emanuel Weiss, and Louis Capone were convicted of murder in the first degree, and they appeal.

Affirmed.

LOUGHRAN, RIPPEY, and DESMOND, JJ., dissenting.

I. Maurice Wormser and Jesse Climenko, both of New York City, for Louis Buchalter, appellant.

Alfred J. Talley, James I. Cuff, M. M. Kreindler, Harry G. Anderson, and Samuel Bader, all of New York City, for Emanuel Weiss, appellant.

Sydney Rosenthal, of Long Island City, Benjamin J. Jacobson, of New York City, and Leon Fischbein and Emanuel Rosenberg, both of Brooklyn, for Louis Capone, appellant.

Thomas Cradock Hughes, Acting Dist. Atty., of Brooklyn (Solomon A. Klein, Burton B. Turkus, Henry J. Walsh, and Edward H. Levine, all of Brooklyn, of counsel), for respondent.

CONWAY, Judge.

The defendants were indicted with three others for the crime of murder in the first degree. They were represented by able counsel during a trial which lasted about eleven weeks. The record of the trial consists of more than four thousand pages in addition to the twenty-seven hundred pages containing the examination of talesmen.

The questions of law presented by defendants' counsel may best be examined against the background of the facts as found by the jury and the facts are therefore set forth with reasonable fullness as a preface.

The deceased Joseph Rosen was present in his small candy store on Sutter avenue in Brooklyn on Sunday morning September 13, 1936. An automobile was driven up to the door of his store. The occupants riddled the body of Rosen with bullets. There were ten wounds of entrance. One Stamler, a tailor, at the sound of the shooting, looked through his window across the street, saw the automobile pull away and took the license number. A few minutes later an automobile turned the corner of Livonia and Van Sinderen avenues so quickly that the brakes or tires screeched somewhat and attracted the attenion of Merlis who had a newspaper stand there. The automobile came to a stop about forty feet from the corner and four men emerged. They walked toward the newspaper stand and up over the trestle which crossed the Long Island Railroad track at that point and which led down into Junius street. The automobile thus abandoned a black two-door Chevrolet coach had the license number which had been taken by Stamler.

The theory of the prosecution's case was that the defendant Weiss was one of the slayers; that the defendant Capone was one of those who had arranged for the murder, who had laid out the route to be taken by the automobile used in it and that he and others were waiting with two cars at the other side of the trestle on Junius street, to assist in the escape of the slayers; that the defendant, Buchalter, referred to as Lepke by the witnesses throughout the trial, had ordered the death of Rosen through fear that he would testify against him in the so-called Dewey investigation, involving racketeering and extortion. There were three others named in the indictment: Harry Strauss, who had been executed prior to the trial (see People v. Goldstein, 285 N.Y. 376, 34 N.E.2d 362), James Ferraco, who had not been apprehended, and Philip (Farvel) Cohen as to whom a separate trial had been granted by consent.

All of the defendants were represented by experienced counsel. Buchalter and Weiss were each represented by two attorneys, each of whom was permitted by the court to participate actively in the trial. It is important, for the purpose of discussing one of the law points affecting the charge of the court, and for no other purpose, to indicate and comment upon the defenses interposed by each of the three defendants on trial. The defendant Capone did not testify and called no witnesses. The defendant Weiss did not testify but called witnesses. He called his mother, his two brothers, his wife and a family friend to testify to an alibi covering the period prior to and at the time of the murder. He also called another witness to impeach the credibility of a prosecution witness, Bernstein. The defendant Buchalter did not testify but called witnesses for the purpose generally of establishing that the deceased was a person of no importance financially or in the business world; that the testimony of the wife, daughter and son of the deceased as to the business venture of the deceased and its financial condition was unbelievable, whereas the position of the defendant Buchalter was so important that it was incredible that there was any reason for the defendant Buchalter to order or direct Rosen's death. This was more clearly shown from the language of counsel for the defendant Buchalter in his summation as follows: ‘I said I did not represent an angel, I meant just this: I condemn the defendant Buchalter's past life with as great vehemence as I possess. I am not in sympathy with his activities in the past I condemn the vicious circle which contrived those people to domineer unions the racketeers Weinstein and Katz. I condemn them with all the strength I have. It is they who prey upon innocent workmen in this city. I condemn the manufacturers and employers who did not complaint to the authorities so that they could put and end to this vicious practice of preying upon labor. But they did not complain not because they were afraid because some of them hoped, by yielding to the racketeers of the industry, that they would gain an economic or financial advantage over their competitors. I condemn every act of the defendant Buchalter's past life. * * * So, gentlemen, do you get my point that Buchalter, who was being looked for by Dewey as king of the flour racket and king of the crime racket he was looked for by the Government he had so many charges hurled against him that everybody in this universe was searching for him, that he would worry about a possible misdemeanor? I say, ‘Possible misdemeanor’ at the hands of Rosen. What proof is there in this case by anyone that Rosen was roaming the streets of Brownsville threatening to go to Dewey? What could he tell Dewey' Nothing. Because, in telling Dewey that four years ago Buchalter drove him out of business, I take it he would also have to tell Dewey the good traits of Buchalter that he got him a job that he tried to get him another job that he effectuated transfers and that he got him $100 and $125 a week. What was there that Buchalter had to fear at the hands of Rosen with thousands of complaints running to Dewey in extortion totaling a half a million dollars? Would he worry about Rosen, an ordinary poor truck driver?‘

At least one of the witnesses called by Buchalter corroborated in important details the testimony of Rubin, the principal prosecution witness (see post).

The defendant Buchalter also called witnesses for the purpose of showing that conversations testified to by some of the witnesses for the prosecution could not have been held, with the accompanying anger and excitement to which testimony was given, because the office in which they were held was small and because others were present therein or in adjoining offices at the times mentioned who would have heard the conversations if they had occurred. Such were the defenses. No time limit was placed by the court upon counsel for the defendants for their summations and the presentation of those defenses.

Facts

One Max Rubin became an executive board member and one of the finance committee of Local No. 4 of the Cutters Union of the Amalgamated Clothing Workers of America (hereinafter called Amalgamated). Murray Weinstein was business agent and later manager of the local and executive board member of Amalgamated. As an official of the Amalgamated, Rubin came to know the defendant Buchalter and was with him almost daily. He also worked for Buchalter in connection with Local 138 of the Flour Truckmen's Union and the Greater New York Tailors Expressmen's Association. Later Rubin became business agent of Local 240 of the Clothing Drivers and Helpers Union, which was also affiliated with Amalgamated. In 1931 a dispute arose between two groups in Local No. 4 of Amalgamated. Buchalter supported one group, which gained control. Rubin arranged a meeting between the leader of the opposing group and Buchalter, and certain officials were given a year's pay and withdrew from the union. Rubin, however, was continued by Buchalter as business agent of Local 240. Rubin was present at the meeting, at which it was arranged by a general organizer for Amalgamated, that one Danny Fields and Paul Berger (the ‘finger man’ in the Rosen murder) should be the intermediaries between the Amalgamated and Buchalter.

In 1932 Buchalter told Rubin that the union wished a stoppage on a specific date of all the trucks which carted clothing in and out of New York city. Rubin told Buchalter that he believed he could stop all the trucks except those of three concerns: Garfield Express Co., Branch Storage and New York and New Jersey Transportation Company (the company of Rosen), (hereafter called N. Y. and N. J. Co.), which handled both union and non-union work. The Garfield Express, hereinafter called Garfield, owned by Louis Cooper, was located at Passaic, New Jersey, was non-union, and operated in competition with N. Y. and N. Y. Co. in Passaic. N. Y. and N. J. Co. did business in New York, New Jersey and had a little business in Pennsylvania. Buchalter said that the Pennsylvania business had to be abandoned. Rubin visited the N. Y. and N. J. Co. officers and then returned and advised Buchalter that when he told Rosen that he would have to give up the Pennsylvania business Rosen said that that was the only thing he had in the business; that he had no money investments but that he had brought in the Pennsylvania business; that Rosen's two associates also objected.

Buchalter told...