People v. Cashin

• Decision Date: 19 July 1932
• Parties: PEOPLE v. CASHIN.
• Court: New York Court of Appeals Court of Appeals

259 N.Y. 434

182 N.E. 74

PEOPLE

v.CASHIN.

Court of Appeals of New York.

July 19, 1932.

Harry Cashin was convicted of first degree murder, and from a judgment of the Court of General Sessions on the verdict, he appeals.

Reversed, and new trial ordered.

For opinion below, see 143 Misc. 551, 257 N. Y. S. 660.

Appeal from Court of General Sessions, New York County.

James D. C. Murray, and Sidney S. Meyers, both of New York City, and Irving Greenberg and Daniel Kirchman, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert C. Taylor, Asst. Dist. Atty., of New York City, of counsel), for the People.

HUBBS, J.

The defendant has been convicted of murder in the first degree. It is charged that he was one of two bandits who participated in a holdup in a speakeasy at No. 49 Lexington avenue, New York City. The defense was an alibi. The principal question for determination in this court is whether the jury was justified on the evidence in finding beyond a reasonable doubt that the defendant was present and participated in the holdup.

At about 8 o'clock in the evening of February 19, 1931, there were four men in a speakeasy at No. 49 Lexington avenue. Ponzer was the bartender. Goldstein was the proprietor. White and Fieldburg were customers. There was also present a woman twenty-four years of age who went under the assumed name of Gladys Clayton. Ponzer was behind the bar. The other four individuals were in a room adjoining the barroom. The three men were engaged in playing a game of cards and the woman was sitting at the table watching the game.

At that time two men entered the barroom and ordered beer. Shortly thereafter they directed the occupants of the room to hold up their hands and covered them with their revolvers. While one of the bandits was taking the personal property from the persons of the men present, two detectives, Christopher Scheuing and Dominic Pape, entered the barroom. They were commanded by the bandits to go into the room where the card table was and were told that they were covered. In obedience to the command they walked through the barroom into the adjoining room, when the Detective Pape, with the courage characteristic of most police officers suddenly pulled his revolver and commenced shooting. Officer Scheuing had on his overcoat and gloves and did not succeed in pulling his gun, but with the same courage displayed by Pape he made an attempt to seize one of the bandits, but either fell or was shot before he reached him. As a result of the affray, Officer Scheuing and one of the bandits were killed. One of the bandits escaped and it is charged that the defendant is the one.

While the bandits were holding up the occupants and before the detectives entered, another woman known as June Clayton entered the barroom. She was forced into the sitting room with the other occupants. Immediately after the affray, all those who were present were taken to the police station. The dead bandit was identified as Albert Checchia. During the previous year the defendant had worked for a short time for Checchia as a truck driver. Between 11 and 12 o'clock that night two detectives went to the home of defendant at No. 120 Tenth avenue. While they were on the street near his home, the defendant arrived in a taxicab. He was taken by the detectives to the police station and questioned in an effort to find out who Checchia's companion was. While he was in the police station, all of the others who were in the speakeasy during the affray were also present. None of them identified the defendant as the bandit who had escaped. After being questioned, he was permitted to go. He told the police officers that he did not know who was with Checchia and did not know anything about the holdup; that he had been calling on a young lady by the name of Rose O'Donnell, with whom he had kept company for about two years.

About two weeks later, Detective Pape called at his house and he was asked to go to the police station and told that the lieutenant wanted to speak to him. He went there and was questioned again as to who was with Checchia on February 19th, and was again permitted to go. On April 6th his mother informed him that Detective Pape was looking for him and that District Attorney Cohen wanted to see him the next morning at 10 o'clock. The next morning, at the time stated, he went to see District Attorney Cohen and was placed under arrest. During all the time from February 19th, until arrested, he had been at home, and on all occasions when requested had gone to the district attorney's office and been questioned. There is no evidence that he made any attempt to escape.

On different occasions before the trial, Goldstein, White, Fieldburg, and Ponzer refused to identify the defendant as the escaped bandit. Upon the trial they were called as witnesses and persisted in stating that they were unable to identify the defendant as the man who was with Checchia engaged in the holdup. Detective Pape was called as a witness, and he testified that he could not identify the defendant, although he stated that he resembled the man who escaped. The woman known as Gladys Clayton stated in the police station and in the district attorney's office that she could not identify the defendant as the escaped bandit. Not until April 7, 1931, about seven weeks after the commission of the crime, did this witness state that the defendant was the man who escaped. She was called as a witness in the Magistrate's Court and testified that she could not say that the defendant was one of the men engaged in the holdup. Upon this trial, she stated that she had testified falsely in the Magistrate's Court. She was the only witness who attempted to identify the defendant as the bandit who escaped. If the conviction of the defendant should be sustained, it must be upon her testimony.

The defendant at the time in question was nineteen years of age; was a bricklayer by occupation and had never been convicted. He testified that on the night in question he called upon Rose O'Donnell, reaching her home about 20 minutes of 8 o'clock and remaining until after 11 o'clock. Rose O'Donnell corroborated that testimony. Her aunt, Rose Grady, with whom she lived, testified that she saw the defendant at her home where Rose O'Donnell was present, and had a conversation with him, about quarter past 11, on the night of February 19, 1931; that he was not nervous and did not act out of the ordinary; and that he left her house about 11:30. Irene Kennedy, a married sister of the defendant, testified that she saw him between 7 and 7:15 p. m. when he left the house, and that he said he was going to the home of his lady friend, Rose O'Donnell. She also testified that she saw him again that night between 11:45 and 12 o'clock.

Norman Feingold testified that he was a taxi driver, married, and lived with his family; that on the 20th of February he read in a newspaper that a shooting had taken place at No. 49 Lexington avenue, and he recognized a picture in the paper as being that of one of two men whom he had driven to those premises the night before. The picture was that of the deceased bandit, Checchia. He mentioned the fact to some one and the next day Detective Pape came to see him. He was taken to the police station by the detective and asked to identify the defendant, who was present. He told the police officers that the defendant was not the man who was in company with the deceased man, Checchia, in his taxi. He testified that between 8:30 and 9 p. m. on February 19th, at...