People v. Weiss

CourtNew York Court of Appeals
Writing for the CourtRIPPEY
Citation290 N.Y. 160,48 N.E.2d 306
PartiesPEOPLE v. WEISS et al.
Decision Date11 March 1943


Appeal from Court of General Sessions, New York County; James Garrett Wallace, Judge.

Jacob Weiss, Jacob Simmons and Harry Epstein were convicted in the court of general sessions of the County of New York, Wallace, J., of the crime of murder in the first degree, and they appeal.

Judgment reversed and new trial ordered.

FINCH, LEWIS, and CONWAY, JJ., dissenting

Harry G. Anderson, Arthur Weiss, and Samuel Bader, all of New York City, for Jacob Weiss, appellant.

Rudolph Stand, Joseph D. Edelson, Vincent N. Donatone, and Thomas H. Allen, all of New York City, for Jacob Simmons, appellant.

George Z. Medalie, Paul O'Dwyer, Sydney E. Cohn, Louis B. Boudin, and Louis Haimoff, all of New York City, for Harry Epstein, appellant.

Frank S. Hogan, Dist. Atty., of New York City (Stanley H. Fuld, Richard G. Denzer, and David Riesman, all of New York City, of counsel), for respondent.

RIPPEY, Judge.

Between nine and ten o'clock on the morning of May 8, 1929, one Hyman Leder, when about to enter the building in which his place of business was located on West 21st street in the city of New York, was struck with some instrument three times on the head by someone coming from behind with such force that there resulted a comminuted fracture of the skull, contracoup and direct laceration of the brain, concussion and hemorrhage, as a consequence of which he died. The defendants were first indicted for the commission of the crime of murder in the first degree on January 22, 1942. Upon a superseding indictment filed April 28, 1942, they were tried in July, 1942, convicted and sentenced to death.

The theory of the People was that there was a criminal conspiracy or understanding among the defendants to attack Leder with a dangerous weapon in such a manner that his death might reasonably be expected to ensue and that the circumstances under which the attack was made indicated deliberation and premeditation and a design to effect his death. The People produced evidence, to which reference will be made later, designed to show that the conspiracy was hatched and nurtured to maturity during the two weeks previous to the homicide and that Simmons struck the fatal blows with an iron pipe some seventeen inches long and one and one-half inches in diameter, wrapped in paper and weighing about three pounds, while in the immediate presence of Weiss after Epstein had pointed out to them the intended victim. A bludgeon alleged to have been used in the killing was produced by the prosecution and received in evidence. Whether it was the instrument with which the killing was done, and, if so, whether it was a dangerous instrument were questions of fact submitted to the jury. The court correctly charged, in the event of an affirmative finding on those issues, that the jury might draw the inference that the killing was done with deliberated intent to kill on the part of the one who struck the blows from the character of the weapon used and of the wound inflicted, coupled with his conduct before and after the blows were struck. Foster v. People, 50 N.Y. 598; People v. Schmidt, 168 N.Y. 568, 61 N.E. 907;People v. Brengard, 265 N.Y. 100, 191 N.E. 850, 93 A.L.R. 1465. In the event, said the court, that Simmons wielded the weapon and Epstein and Weiss were co-conspirators and knew that he had the weapon, then they shared in his criminal intent. The court charged the jury that, if they should accept the theory of conspiracy as advanced by the People, they could find all three defendants guilty of murder in the first degree but, if they rejected that theory, they could not find Epstein or Weiss guilty of any crime and must acquit them.

Clearly the conviction of Epstein and Weiss on the record here must rest on a conspiracy among all of the defendants to kill Leder and upon knowledge on their part that Simmons had a dangerous weapon to be used to kill, or it rests upon no legal foundation at all. The prosecution relied upon circumstantial evidence to establish both those facts. In such circumstances, the facts from which the inferences are to be drawn must be established by direct proof: the inferences may not be based upon conjecture, supposition, suggestion, speculation or upon other inferences: the conclusion sought must flow naturally from the proven facts and be consistent with them all: the proven facts must exclude to a moral certainty every hypothesis except that of guilt or of the offense charged and not alone must all the proven facts be consistent with and point to guilt, but they must be inconsistent with innocence. people v. Fitzgerald, 156 N.Y. 253, 50 N.E. 846;People v. Razezicz, 206 N.Y. 249, 99 N.E. 557;People v. Woltering, 275 N.Y. 51, 9 N.E.2d 774. They are ‘of no value if consistent with either the hypothesis of innocence or the hypothesis of guilt. It is not enough if the hypothesis of guilt will account for all the facts proven’. People v. Suffern, 267 N.Y. 115, 127, 195 N.E. 816, 820. Briefly as possible, we review the testimony produced and incidents in chronological order relied on the establish the ultimate facts.

1. In 1929 Hyman Leder and His son were manufacturers of pocketbooks and ladies' handbags with a place of business on the tenth floor of the building at 12 West ,21st street in the city of New York. On the ground floor was an entrance to a hallway leading from the street to the elevators. They were mumbers of an association of pocketbook manufacturers, one of whose purposes was to deal collectively with the International Pocketbook Workers' Union concernig emplolyees. They maintained a union shop and dealt directly and through the association with the union and operated under a contract between the union and the association which was about to expire on May 1, 1929. In 1929 they resigned from the association, the resignation being effective as of April 30, and decided to open a factory at Poughkeepsie, N. Y., where they would be outside the jurisdiction of the union. They moved their machinery from New York to the new factory location during the last part of April, 1929. It is the claim of the prosecution, that therein lies the motive for the murder and furnishes one of the circumstances upon which the guilt of the defendants may be predicated.

The defendant Epatein was, at the time of the homicide, and had been for many years previously, a member of the union. In 1927 he was appointed and later elected an organizer for the union and continued as such to the end of 1929, and off and on thereafter. Previously he had been a member of the executive board. During that period from 1927 to 1929, one Charles Goldman was secretary and treasurer of the union and Abraham Shiplacoff was its general manager. Weiss had a restaurant business. Neither he nor Simmons was a member of the union or in any way connected with it. There is no evidence in the record that any one of the defendants was previously engaged in the business of assault or murder or that any one of them had a previous criminal record.

It is competent to prove motive in a prosecution for any criminal offense where reliance for conviction is placed upon circumstantial evidence. It is, however, a circumstance, like other circumstances, which must lead and tempt the mind to perform the criminal act. The circumstance must be proved in the same manner and lead to the conclusion sought in the same way as any other circumstance upon which reliance is placed. The motive inferred ‘must have some legal or logical relation to the criminal act according to known rules and principles of human conduct. If it has not such relation, or if it points in one direction as well as in the other, it cannot be considered a legitimate part of the proof’. People v. Fitzgerald, supra, 156 N.Y. at pages 258, 259, 50 N.E. at page 847. In the instant case, the motive must have been to kill; otherwise ‘it cannot be considered a legitimate part of the proof.’ No such motive may be inferred from the evidence in this case on which the prosecution relies to establish motive in the case of either Weiss or Simmons. Neither had any union or other labor affiliation; of no interest to either, so far as appears, were Leder's union or nonunion affiliations or activities. As to Epstein, perhaps some ‘ingenious or imaginative mind’ might ‘infer by some process of reasoning the existence of the main fact in issue’. (People v. Fitzgerald, supra, 156 N.Y. at page 257, 50 N.E. at page 847), but the facts upon which the desired inference is based have no logical or legal relation to the murder according to ordinary rules and principles of human conduct. It is wholly remote and speculative that they necessarily led to a motive to kill Leder to the exclusion of every other hypothesis. More reasonable and logical is it to suppose that Epstein's motive was to bring Leder to terms or to teach him and others a lesson by available means not involving personal injury or death. Yet the trial judge submitted those facts relating to motive to the jury for consideration as against all the defendants on the ultimate fact of conspiracy to kill. There was no specific or separate charge on the subject of motive, if any, as affecting any one of the defendant separately and alone.

2. Epstein's job as organizer was a full time job. Among his duties were the organization of union shops and the investigation of the moving and changing of locations of shops. On the afternoon of April 27, 1929, as he was leaving union headquarters on West 21st street he noticed a truck loaded with pocketbook machinery. Returning to the union offices to procure the use of an automobile with which to follow the truck, since he did not know to what location the factory was being moved, he met Adam Rauch, known as ‘Kid Adams' and referred to by that name throughout the record, and told him a factory was moving and that he wanted to see where the...

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