People v. Weiner

• Decision Date: 01 May 1928
• Citation: 248 N.Y. 118,161 N.E. 441
• Parties: PEOPLE v. WEINER.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 118

161 N.E. 441

PEOPLE

v.WEINER.

Court of Appeals of New York.

May 1, 1928.

Robert Weiner was convicted of murder in the first degree, and he appeals.

Reversed, and new trial ordered.

Appeal from Court of General Sessions, New York County.

Robert H. Elder, of New York City, Charles Rothaus, of Brooklyn, and David H. Slade, of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Robert C. Taylor, Asst Dist. Atty., of New York City, of counsel), for the People.

O'BRIEN, J.

[1][2] On November 3, 1926, three prisoners attempted to escape from the city prison in New York where they were confined awaiting trial under indictments for felonies. During their attempt to break jail and shoot their way to freedom they killed the warden and one of the keepers. Their desperate venture was unsuccessful, and, when their efforts were thwarted, all three committed suicide. As they were confined under indictments for felonies, their attempt to escape constitutes a felony, and, since they were engaged in the commission of such a crime, the killing of the warden and keeper constitutes murder in the first degree. Any one aiding and abetting in the commission of that crime is likewise guilty of murder in the first degree. Defendant has been convicted as one who so aided and abetted.

Weiner, the defendant, had been an associate of Amberg, one of the three prisoners, before Amberg's arrest and incarceration. Weiner himself had been convicted of larceny, and was a prosfessional gambler and a bootlegger. After Amberg's arrest, he visited him eight times at the city prison, and the evidence indicates the existence of reasons justifying the strongest suspicion that he participated in some way in the prisoners' attempt to escape, and was prepared to supply further aid. On the marning of the day upon which the escape was attempted, Weiner spent some time with Amberg in the prison. The previous day he had borrowed a chauffeur's license, and forged the name of the licensee by erasing the true name and substituting another. After his conference with Amberg, under a false name he rented a car from a garage which he had never previously patronized, spent several hours with Amberg's brother, received $20 from him, and was present at the prison door with this car at the hour when the escape was attempted. When the sound of shots issued from the prison to the street where he was waiting, he drove away. Within a few hours he was apprehended and interrogated by the police. He made confessions, which, unless made under the influence of fear produced by threats (Code Crim. Proc. § 395), would be competent evidence against him. These confessions embrace statements, later repudiated by him as false, to the effect that he had procured the pistols with which the murders had been committed, and that, more than a week before, he had thrown them over the prison wall. The judge in his charge submitted as a question of fact the issue whether the confession had been voluntarily made, and instructed that, if the jury concludedthat it had been made under the influence of fear produced by threats, they must entirely reject it. After he had finished his main charge, he instructed the jury at the request of defendant's counsel:

‘If Weiner did not aid and abet in supplying pistols for use in the attempt to escape, that under the evidence in this case he must be acquitted.’

That is the law of the case, the theory upon which it went to the jury, and presumptively, therefore, the theory upon which defendant has been convicted. Except for his confessions, no evidence connects him with any activity in supplying pistols. If the evidence cannot bear the inference that his confessions might have been voluntary, the question of their nature should not have been submitted to the jury.

[3][4][5] That defendant was assaulted and threatened between the times when he was seized by the police and when he was brought into the district attorney's office cannot be doubted. The evidence is conclusive on that point. He testified that the persons who assaulted and threatened him were police officers, and he narrated in detail the methods by which he swears that his confessions were extorted from him. His testimony is denied by the officers whom he named as participants, and, if no other...