*1 348 872) Law (§§
in the Education 871, appointments after shall be examination conducted competitive made by the Board of Examiners of the Board Education. legislative That is a it is practicable determination examination, by competitive ascertain merit fitness to the and such determination command conforms less if Constitution, by placing position no than made examina- competitive in the classified service. Where itself has no Legislature power tion is practicable eligibility appointment. confer costs. afiirmed, without The order should Loughran J., O’Brien, Hubbs, Crouch, Crane, Ch. JJ., concur. and.Finch, affirmed, etc.
Order People of New York, Respondent, State Crum, Appellant.
v. William 1936; 31, 1936.) decided December (Argued November *2 Ballman for appellant. J. Allan Henry Grusky and Attorney, District Henry Hirschberg, respondent. J. The of Ch. Constitution this State Crane, 7, provides jurisdiction article section VI, judgment the Court where the Appeals, except death, shall be limited to the review questions law. “ This,” said the court in v. N. Y. People Gaffey (182 enables us to the facts in 259), capital review cases as we did.” A review of the facts that we always means shall examine the to determine evidence whether our judgment it has sufficient to make out a case of been obliged a reasonable doubt. We are beyond weigh conclusion to the the evidence and form a facts. us, It is as in most cases with find sufficient, fact; it is question evidence which presents necessary *3 go can affirm a and find further before we conviction weight credibility as to is of such and evidence finding the justified in convince us that was jury doubt. a reasonable guilty beyond A am reading of this record causes me hesitate. I shall a reasonable doubt which convinced. compels which, judgment, in my and attempt explain trial. grant and a new us to reverse this conviction gasoline a Grover Nielson kept Here are the facts: C. a mile out of road station on the Walden-Wallkill about 15, December Saturday night, On village Walden. at nine o’clock and the hours eight between or persons killed some by person shot and night, he was The a bullet holdup. him in who robbed apparently it distinct marks had on such his death which caused of the the identification grooves as to enable readily it ever be found. pistol, should Vyborny, Emil 16, 1934, December Sunday night, On Sylvan View avenue Bay station on having gasoline shot and was Jersey, New Hackensack, near boulevard, caused his death and the bullet which killed in a holdup, killing Nielson. the bullet as did came from the same pistol also King’s woods, boys found by The was pistol over given and was Weehawken, near King’s bluff, called The Jersey. of New authorities by police them to the contra- without are connected and the two bullets pistol detail, and identifica- explanation and with such diction The ballisticians, one of facts. any as convince tian F. Butts of New Jersey Harry Humphrey Winslow as Col. York well city police department, New for their conclusions. Jones, B. state reason Roy fully appointed was selected the defendant and Col. Jones suggestion, on court, order of the the defendant’s by the both agrees Humphrey with as his expert, and the bullets both came Butts that Nielson Vyborny the same pistol. from facts: start this case with these certain therefore,
We, did so which was pistol killed Nielson with Whoever killing conclusion night next Vyborny. used the draw in the absence naturally any one would it the same who would be person explanation killed both. story up by Wiese, taken Charles point
At this is that an the defendant Crum accom- relation to whose gave and in He turned evidence substance State’s plice. Crum, the following testimony: defendant, William named John Charles Wiese a man Favorito the witness friends and associates. known Cram him having six served with years, Jersey for about known for Guard. Favorito he had about sixty National *4 Jersey, in Leonia, Crum lived New which days. borders These three Englewood. lived in the on, adjoins, of Leonia Hackensack. vicinity belonged in to question The in whose pistol Favorito, it was. Crum stated that possession place knew in York State they easily near Walden New where could out started in a car on get some three money, to 1934, Saturday afternoon, December rob Nielson. to car at They parked drove Walden directly they street off Ulster from avenue, place James of the village the main section where walked back to in a traffic officer the middle street direct- there was corner, them, on the ing They traffic. stood three going hour or into more, nearby for half an Cram lunch cigarettes. wagon, by Stanley Burton, purchase to kept smoked some of cigarettes these when Crum came back.
Later drove toward they Nielson’s place, Wiese pro- that he did not testing desire to get any into trouble in New York State. Favorito and Crum out of got car, while Wiese drove a feet or more away. When thousand he came back Crum and Favorito in jumped car, Crum demanding wheel, were in saying they a hurry to get away. also said that when Crum in they went Nielson for a rifle which grabbed was on a chair and he (Crum) said ” Let “ Favorito, it; him that Favorito shot Niel- son in the hand. Earlier said that they Crum were going girls meet some Walden and needed this money them, entertain but because of the shooting they had to get back to Jersey. When arrived they at Fort Lee in New in a Jersey dance hall gave Wiese four Crum dollars out of the thirty they dollars he said had taken.
On the says next night, Wiese, the three of them held up Vyborny’s place, only this time Crum remained car while Wiese and Favorito went into Vyborny’s gas station where Favorito shot him. Wiese Crum was says looking the door as he was obliged to drive some people away, and that when they ran out and in the got ” car Crum bawled out “ Favorito, saying, The same thing happened night last place.” same
On both these occasions it will be noted that Favorito the shooting. did While they escaping Vyborny’s from murder, Favorito gave gun promised Crum who to hide it or take care of it. inference is that it was he, view of this who statement, gun threw down King’s bluff, it where was found Clifford boy Warrington, who it to gave Officer Kessner.
This in outline is the testimony against bringing him into the of Nielson. If story Wiese’s is to be *5 accepted, guilty Crum is of in the first degree; murder but pause we to reflect that under our law one can no convicted upon the testimony of an accomplice standing alone and unsupported other by proof. has given Wiese cross-examina- by unshaken detail, testimony his much or inherent without any apparent improbabilities tian His reputation But who is Wiese? of falsehoods. marks in New tried with is bad. He was Favorito was found Favorito for the Jersey Yyborny. murder a sentence death; Wiese received guilty put was as he fifteen years, although apparently twelve to Wiese acquitted, although Crum was as Favorito. guilty saying from refraining, however, testified against him, before. night the Nielson anything about having been record, had had a previously criminal different on two convicted of conspiracy, taking money occasions, extorting Experience on another. money accomplice’s has the courts to be of an taught chary lead may there are so reasons which testimony many as one with another. to, to shift or share the crime with Wiese jail
Thus witness Coco, named Hackensack, testified that Wiese told him save his own neck. against turn State’s evidence Crum to witness Coco little reliance on what this place very said; underlying to it to call attention refer only for our good experience reason drawn reason from Procedure, section 399 of the Code of Criminal statute, upon A conviction cannot be had “ reading: of an unless he be corroborated such other accomplice, to connect the defendant with com- evidence as tends mission of the crime.” not the com evidence need show The corroborative crime; it need show that defendant of the mission * * * It crime. connected with commission with the com if it tends to connect is enough reasonably way may in such a crime mission telling the truth. jury accomplice satisfy particular point. to any corroboration not restricted own statements Its connection with defendant’s * * * its may vary in considered. It denials should be particular according the circumstances nature *6 354 indifference or seeming in
case. Matters themselves meeting may place persons of the light trifles time as have a narrative to accomplice’s so with the harmonize between necessary furnish the connection to tendency Y. Dixon, N. v. 231 (People defendant and the crime.’’ 111, 116.) connect is to testimony nothing
Without Wiese’s there bullets, the asso- pistol, with the case. The pistol disposition ciation with Favorito and has what said. solely by are linked with Crum up bullets twenty-eight-calibre fact that certain of his home in Leonia when in the drawer found bureau impor- be considered of the least it was searched cannot there were the explanation contradictions Slight tance. them, obtaining to the manner gave he ever had a even pistol but it not appear does The People that Favorito carried. possessed the one belonged proved Favorite’s uncle that through pistol accomplice. this third in the look to other evidence case must, therefore, We that doubt conviction, and it is here right sustain this in. creeps wagon in Burton, who the lunch kept
Mr. and Mrs. into having Crum as come Walden, identify were asked on afternoon or cigarettes their place purchase could not 15th. Mrs. Burton of December evening Mr. out Burton Crum’s although picked him and identify he that he positive photograph, testifies all depends be mistaken. It man, might and he who Walden, middle upon the chief police three men are traffic when these street, directing corner for half an hour on the standing said to have been or more. case, of Crum is the crux of the let
As the identification as it appears give George Totty’s me record: early in the afternoon or Q. you Did sometime L see the defendant William 15, 1934, evening of December N. Yes. Y.? A. Walden, Village Crum the *7 “ Village ih the that saw him Q. you And at time A. on Yes. duty? N. were Walden, Y., you “ corner of Main At the A. Q. And whereabouts? Ulster Avenue. “ saw the just where Q. you Tell the jury briefly if not, alone or and what he was whether defendant, I first seen at Well, do. A. him saw anything him you — (cid:127)— the clock right by Lunch, or over by People’s — I seen Avenue; that’s on Ulster just the clock below it was a little unusual there; the bank standing around him time of strangers around the bank at that to have three Walden strangers don’t so year many we regular I on line of my with wintertime; going was I traffic pedestrians after the duty, looking ** * There him right continually. couldn’t watch were three of them. opinion not in Q. your tell us whether or you Can
“ on this occasion one the two that saw you was men I believe he A. in Walden with defendant Crum? * * * was. clothing on any I to the A. couldn’t “ Well, testify three; I is all the faces. remember, face just the or not defendant Q. testify You wouldn’t whether “ I one A. think there was on, you? had a hat would on; one, I hats couldn’t say that didn’t have I say on I had hat and wouldn’t don’t think Crum ** *. other two had sure whether the him identify characteristics did Q. Now, you what “ of a chin much having in not regards his face? A. Well, ** *. call a over shod I little what would “ men? watching the three long Q. you How I half an hour but not Well, continually. A. “ Q. A. Not No continually? “ * * * concentrate you at no time did Q. And Crum, A. Not did your you? on the defendant view solely solely, no.
356
“ Q. away far was the defendant Crum you How when him? A. when first saw him he Well, saw would be, first — nearest was was 20 sometimes him or 25 well, * * be perhaps the farthest *. feet and would quite are that one of you positive “ Q. Now, Chief, on that is the day in Walden men saw defendant you Absolutely. A. Crum? Q. you honestly Don’t believe could you A. unless he a twin in that? Not brother.”
mistaken trial that he was upon testified this never if in his Totty correct this Walden, so corroborate Wiese’s strongly story circumstance would jury’s guilty. verdict of opinion Can justifies my *8 that this we identification under say or should the say, we sufficient to send a man to his given is death circumstances n —to convict first degree? of in Totty him murder or twenty-five feet, than got twenty possibly never nearer men; on they standing were the corner feet to these sixty Walden; village Totty of in main was street his tending directing the street duties middle of their Nothing beyond presence mere happened traffic. him to attention. give special They caused Crum watching was in the town and he strangers them directing while feet traffic. twenty-five away, or twenty is the man, is that Crum identification positive While is altogether satisfactory such circumstances under of no a mistake. I have doubt beyond peradventure or a justified honest giving belief, his but are we is Totty that n underthe taking this belief as a finality? circumstances might affirming a death hesitancy
Whatever such is, identification, as it upon dependent, sentence that should not do it in view convinced we more than am testimony in case. of the other for of Pascach Coach whom Company, president half, Mayor for a and a year had worked the defendant fire of deputy chief the volunteer former Leonia, of fire and other marshal the ex-chief department character. He served gave good a citizens department. the volunteer fire His his mother, aunt and uncle that testified be was with them at his grandmother’s Englewood house in on Saturday afternoon, December 15, drove them home to Leonia about half-past eight evening. Arthur Lamme and Henry Muller, him Jr., Crum, of having friends testified to been with from eight-thirty about o’clock in evening, meeting him moving at a picture house and going thereafter dance in Crum’s Tenafly. aunt, who to his testifies at her presence with when he supposed time_ is Walden, woman char- some dependability acter, twenty-six years she has been the bookkeeper in the firm & Tippin Tippin, Parshall. Thomas formerly Englewood. weight We cannot say evidence with the against when prosecution Totty’s identification rims up this of the defendant. The truth hard to find this court should not readily interfere with jurors verdicts of who have had advantage seeing hearing witnesses. Inconsistencies and strained situa- tions every arise in case. perplexing They do here. For Crum stated on the instance, stand that Wiese had a arising grudge against taking him out a quarrel place weeks before the of December, three fifteenth *9 of grabbed 1934. He hold me to me of the car pull out * * and *. I hit me Then hit him, and the was bus coming road, the and he seen the bus up ran, and he the bus as stopped, stopped out, the bus he hollered ” I will ‘ it is last get you thing even with if the I do.’ ever Such relationship was the between these accord- men, ing to of testimony the defendant. It this incident turning"on which for says accounts Wiese’s him and bringing him into the On other Nielson murder. hand, have the of testimony friend, Alphonse we Crum’s Ficaro. He is man with that Crum went to the dance on Saturday night, brings him December 15th. Crum into the case a friend and Ficaro associate, testifies yet that Saturday when Crum came that morning, to see him of 15th, work, at his
morning, place December consistent the bad was with him. This with hardly us feeling which Crum would have believe existed between him and Wiese. of behalf
Recognizing points these various of that identification opinion Totty’s still am the People, based the reasons doubts, upon does not remove me to conclude that the conviction forcing given, have granted. a new trial reversed, should be a of conviction should be reversed judgment new trial ordered. court is about majority A (dissenting). J.
Finch, degree on in the first set aside conviction was In there opinion of the evidence. weight my to sustain the verdict. evidence ample allegedly that one of three men shows This record evidence and turned State’s Wiese, Charles involved, to another gave the order that this defendant testified keeper to shoot down the executed, since confederate, might that near order the three gas station Walden testi- robbery thirty dollars. This through profit village police is corroborated the chief mony that it unusual in the winter who testifies was Walden that for strangers village about this time for men under surveillance horn he these three one-half on the corner of Main and Ulster avenues as he stood most or at the village only twenty twenty-five that feet directing This police, traffic. chief sixty away, feet absolutely observer, testifies that he identified trained Crum’s on the stand this defendant. own alibi one the belief that his entire impress such as to with from his story considerably was fictitious. His varies hearing for his extra- given at the previous testimony In addition Crum dition from New would Jersey. us and Wiese were enemies believe *10 him, get to even with Wiese turned State’s evidence and a friend admittedly a witness who whereas testifies that when Picaro, associate of Crum, namely, afternoon of the 15th him on the Crum came to see contradiction is in direct him. This Wiese was with he saw Wiese was the last Crum’s statement the 15th and or three before during quarrel a two weeks against him. grudge thereafter Wiese had character witnesses on the alibi Emphasis placed all were close witnesses by furnished Crum. These alibi aunt; his character his uncle and relatives, mother, Lamme and Even of the same relatives. witnesses friends his family to corroborate tends Muller, testimony whose own present friends of the defendant. His alibi, were of the type criminals shows, associates, the record in garage. his car Crum’s who left Favorito Burton Mr. witnesses, The State also produced as the Walden positive not so Mrs. who while Carmen, or someone a saw Crum they chief of believed police, “ ” scene the crime. Bullets him near the lot like whole murder used in the were found those similar in calibre conclusive, this while last, All Crum’s bureau. “ seeming in themselves at least matters surely are ” so harmonize with light trifles which indifference have a tendency as to narrative accomplice’s connection between necessary furnish the 111.) Y. 231 N. When Dixon, v. (People the crime.” of the identification positive the clear and to this added of the seems jury the verdict noted, first chief of police, doubt. Other a reasonable justified beyond of the defendant guilt show the be recited could also verdict of the is that need find court but all this weight beyond of evidence is sustained jury finding guilty this defendant doubt reasonable abiding citizen. of a law be affirmed. from should appealed judgment JJ., concur with Loughran, Crouch Lehman, opinion dissents J., Ch. Finch, J.; Crane, concur. JJ., Hubbs, O’Brien reversed, etc. conviction Judgment