The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-12-30
CARUSOS CONVICTION UPHELD
THE CASE WILL NOW GO TO THR
APPELLATE DIVISION.
Meanwhile Policeman Cain Has Been 40.
euscd OF Swearing He Didn't Know
where q Complainant Lived when He
Did KuOw-HIs Record Sent to Jerome.

Metropolitan Opera Hous tenor, for dis
orderly conduct in the monkey house I'm
Central Park was affirmed yesterday By
Recorder Gon. Caruso appealed from the
decision OF Magistrate Baker. who fined him
$40. Caruso can appeal from Recorder Gon's
decision to the Appellate Division. IL was
announced that he would do SO.
Recorder Gof holds that Magistrate
Baker performed his duty and that there
Is nothing in the record Of the case to show
that he erred in law. It was not essential,
the Recorder says, that Hannah Graham.
the woman who made the complaint against
Caruso at the Arsenal in Central Park after
his arrest, should have appeared against
him before the Magistrate.
The Recorder holds that the offence was
not so much against an individual as against
public order and decency. In that respect
the Recorder Overrules the point raised
by eX-Judge A. j. Dittenhoefer, counsel
for Caruso, that il Caruso committed any
offence it was a misdemeanor and Magistrate
Baker should nave held him for trial In
Special Sessions. This is the decision;
Because Of the limitation Of time and tbs
approaching end OF my jurisdiction. | am con-
strained TO formulate a very brief opinion.
expressing what l believe to be principles
well settled and sustained by authority.
/. Section 675 OF the Penal Code has not
superseded or nulliied section lass Of the Con-
solidation act.
IL. There is such an offence as -disorderiy
conduct that tends to a breach OF the peace"
III. IL was not essential TO the conviction
that the woman. Hannah Graham. should be
present aud give her testimony. The Offences
is not 10 much against the individual as 1t ID
against public order and decency.
". The Magistrate did not err in refusing
to admit the police blotter In evidence. IL
was not a public record which would prove
itself. IL was simply a memorandum made
by the police sergeant, and could only be used
to show contrary admission made by a wit
ness where q proper foundation had been
laid TO impeach his testimony. No such foun-
dation was laid.
V. On the question Of the weight Of evi-
dence and the credibflity to be given to the
witnesses the law vested in the Magistrats
the power to decide all questions OF fact. and
to render his Judgment on the testimony -
he believed 1t and. unless 1t appears that there
was an abuse Of discretion or q determination
clearly against the weight OF evidence. an
appellate court cannot disturb the judgment.
An examination Of the record does not disclose
/ any error pIcJuuNChhi 70 Nnd uelCuuaut. ~
matter OF law. l cannot say that the Magis-
trste erred In his judgment. and as matter Of
fact l cannot substitute my Judgment for his.
He had the witnesses before him, and from
their appearance. behavior. testimony and
their manner Of giving It was best qualified
to judge OF their credibility. Even though I
should come to the conclusion that II i were
sitting in his place I should render q dMferenf
judgment, that would not justify me In re-
versing his Judgment. Until the contrary 10
shown l must assume hat the Magistrate per.
formed his duty. 1 am limited by the record
certified by the court below. On II alone can
l pass judgment. and / cannot superimposs
upon IL my views as to what could or should
have been done. Conviction affirmed.
In the first paragraph Of the decision the
Recorder holds that under the Consolidation
act there is such a thing as disorderiy con-
duct and that the Penal Code does nos
supersede il.
Judge DittenhoeCer was at Atlantic City
yesterday. At his Office /. NJ. DittenhoefeP
said that it was the intention to appeal
from Recorder COTS decision should IL be
against Caruso. There was some discus
sion as to whether Recorder COTS deci-
sion could be- appealed from, but at the
District Attorneys office and among the
Judges il was said that an appeal could
be made to the Appellate Division.
Recorder Gof intended to 20 into tho
merits Of the case and make a much longer
dechion. His time was taken up, how
ever, with the trial Of Col. William d. Mann
Of Tour Topics and other duties.
Carlso had no comment 70 make when
told OF the decision OF Recorder Gof. Mr..
Conried, who is i'll with sciatica, refused 70
be seen. Thu monkey is dead.
Things have been breaking badly for
Plain Clothes Man James j. Cain since be
arrested Caruso in the Central Park home
for monkeys. IL wasn't long after the
Caruso muddle that Cain was transferred
from his soft job in the park and sent up
10 the West l52d street station TO work on
Inspector Dennis Sweeney's staff. Yester-
day he was accused in the Harlem police
court before Magistrate Barlow OF making
a false affidavit TO the effect that the com-
plainant in an assault case could not be
found, when he knew. the lawyer for the
complainant swore, where the complainant
lived and that the man was sick in bed.
On Christmas Day Cain, working with
his partner, Detective Condor, arrested
Giovanni Liberatore Of 47e West lo5th street
for striking Giustino Buto over tho head
with an iron bar in a fight the two men
had about a woman. Buto lives at llOo
sherman avenue. Cain and COndon had
Liberatore ~arraigned in the Harlem police
court on December 20. Cain making O short
affidavit charging Liberatore with feionious
assault. A certificate from l.. W. Taft,
house surgeon OF Fordham Hospital, was
also produced in court, stating that Buto
was in the hospital suffering from con-
cussion OF the brain and was unable 10 no
TO court. Liberatore was held in 5000
bali and the case was postponed until yes
terday. Liberatore couldn't furnish bail
and was locked up.
Cain and Condor brought Liberatore into
the Harlem police court yesterday morning
when the case was called before Magistrate
Barlow. Cain told the Magistrate that the
complainant wasn't on hand.
This Is a very serious charge said
Magistrate Barlow, who appeared to be
annoyed. "The complainant should be here
to prosecute this man. Where is the com-
p~lainant2"
Il haven't been able 70 find Buto,' said
Cain. when 1 went to tho hospital after
him they old me he had been discharged