152 N.Y.S. 595 | N.Y. Sup. Ct. | 1914
Within a few hours, excluding the intervening Sunday, of the sentence of death being executed upon the defendants, they make application for a new trial. This application was, in ordinary observance of the rules, referred to me by the justice of this court before whom it was made. Such reference was made because the law requires that a motion for a new trial must be made before the justice who presided at the trial. Were it possible, in the sense of judicial propriety, for me to avoid hearing the application I would have done so, to the end that a stranger mind would be employed and that I would be relieved from a very onerous and «heart-searching burden. But the law casts upon me a responsibility and a duty, and no matter how grave the responsibility may be or how disagreeable the duty, I shall not shift the one nor fail to discharge the other.
On behalf of the defendants there have been presented nineteen affidavits, some of which are original and others copies of originals already filed with His Excellency the Governor. On behalf of the People the district attorney has filed ten affidavits
The points of importance dwelt upon by Dresner were that he was present on the 13th of July, 1912, outside the Garden Restaurant, when he heard Rose say to Vallon and Webber, as Rosenthal emerged from, the restaurant: “ There he comes. Go and put it over him! ” That Dresner, understanding what that meant, crossed the street to avoid danger, and that Rose took him for a Burns detective. Rose did not so testify on the trial. What Rose testified to was: “ It began to look too much like business, and I called Louie aside, and I said, pointing to a man across the street, ‘ Do you see that fellow over there? ’ He said, ‘ Yes.’ I said, ‘ I am almost positive that is a Burns man that District Attorney Whitman has assigned to watch Rosenthal.’ They took the hint and departed and went home. I did not know whether or not the man was a Bums man or a Burns detective. I knew nothing about that at all. I just used that. It began to look like business and that never was my intention at any time to bring about the murder of Rosenthal.”
This testimony of Dresner bears the unmistakable stamp of being made to fit Rose’s testimony, to show an apparent want of foundation for the presence of a Burns detective. Rose did not say that he was a Burns detective, but he made use of the appearance of the man as a pretext to ward off the impending killing of Rosenthal. It is somewhat remarkable that notwithstanding the apprehension of Dresner that something dire was
Rao testified to the delivery of a note from a female friend of Cirofici at his house. The only bearing that this testimony can have is upon the alibi interposed by Cirofici at the trial. Evidence to sustain an alibi on a motion for a new trial where the alibi has been passed upon by a jury is, according to all the authorities, standing alone and unsupported by unquestionable proof, of little or no value. This witness, like the preceding witnesses, did not come forward until the last hour to give his testimony, though he had been questioned by a deputy com
Jialmanson testified that he was in Forty-third street, saw an automobile and recognized Vallon standing on the running board holding a pistol in his hand. He did not know Vallon, had never seen him, and the only means of recognition that he had was that two months later he saw in a Cleveland newspaper a picture purporting to be that of Harry Vallon. The vice of this testimony is similar to that of the testimony given by Bur-well, before referred to. It is alike worthless. This witness also maintained silence until after the decision of the Court of Appeals in the Becker case, and then he said he told his employer in Buffalo of it, who advised him to communicate with Becker’s lawyer.
Briefly have I touched upon the principal part in the testimony of each of these four witnesses, and in doing so I have not referred to the testimony or the affidavits in contradiction, nor to the impression which was produced upon my mind during their examination and cross-examination. That impression was most persuasive of disbelief in what they said. If no other circumstance existed but that of their silence and delay in coming forward until the last moment, notwithstanding there existed great public excitement and widespread newspaper reports and comments, of which the Court of Appeals has taken judicial notice, it would of itself be sufficient to create grave doubts of their truthfulness and good faith.
At common law a convicted man could not avail himself of a motion for a new trial. That privilege as it exists to-day is purely of statutory creation. The statute (sec. 465 of the Penal Law) provides that the proffered evidence must be newly discovered since the trial; that, if before received, such evidence would probably have changed the verdict, and that the failure to produce it on the trial was not owing to want of
On the law and the facts they have had a fair trial, and a jury of their fellow citizens has pronounced them guilty. The court of last resort has unanimously affirmed that conviction. Appeal has been made for executive clemency, and in these last moments, a year and five months after the conviction, when the crime itself is almost forgotten and human sympathies are deeply touched at the prospect of four human beings paying the highest penalty known to the law, strenuous efforts are made to arrest the judgment of that law. Were those efforts directed alone to human sympathy there would be but one answer. But they are not directed to human sympathy. They are directed to an instrument of the law whose sole duty is to administer justice, and, no matter how harsh it may seem, it is nevertheless justice to deny the motion.