The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-02-25

tending to convict Becker. who thus far
had only been accused of the crime.
The remaining witness was Schepps.
also a gambler and lawbreaker. and the
Intimate Of and more or less dependent
upon Rose. While the presiding Justice
permitted the jury to and that Schepps was
not an accomplish Of Rose and the others
and therefore not guilty like them OF the
murder OF Rosenthal, some OF the mem
bers OF the court believe that that hndlng
was opposed to the overwhelming weight
Of the evidence"
Judge Hiscock says that undoubtedly
there Is evidence which permitted the Jury
70 say that Becker was a CRATER and that
he had relations with Rosenthai and some
Of the others. but that this does not es-
tablish that he was guilty OF the specific
osime OF murder. which alone was the
crime he was being tried for.
In giving the reasons why the court
thinks the judgment should be reversed
the responsibility for such result is placed
almost wholly upon Judge Goff The
only serious error attributed 30 the Dis
trict Attorney on the trial is that he
several times referred In his opening TO
the alleged general character and mis-
conduct OF Becker as CRATER: u be-
ing held that while evidence OF the lat
ters unlawful relations with Rosenthal
leading up to the murder as claimed was
proper. Becker was not on trial for graft
Ing, and therefore these statements about
his general misconduct were erroneous
and apt to prejudice jury
JuAse Cor Criticised.
In discussing Judge COTS rulings ref
erence Is made TO an indictment at the
opening OF the case where the Justice
In the presence Of the panel from which
the Jury was about to he drawn, threat
ened to have Mr.. Mcintyre. senior ooun-
sci for the defendant, removed by an
oficer from the court because he had OBJ
}ected to certain remarks OF the District
Attorney. and IT 10 stated that this occur
renee fairly foresha allowed the relationship
OF antagonism which was to prevail
between the trial Judge and defendants
counsel.
It 10 stated that repeatedly. without any
objection. complaint or reques, by the
District Attorney, the court on It's own
motion criticised the DEFENDANTS counsel
for some little PECULIARLY in the form OF
his questions. which was utterly innocu-
Gus interviewed to protect the peoples
witnesses on cross-exa minatio1 and OBJ
5ected to and excluded questions asked
BY defendants counsel.
On one occasion when Beckers counsel
asked ~ the District Attorney would con-
csde fact about which apparently there
was no dispute the court ruled for the
District Attorney mo. I will not let him
concede IL Reference IL made to what
are regarded a. harsh and uniustifa Bile
criticisms OF and peremptory orders to the
defendants counsel and 20 occasions when
haste seemed to become the essence Of
the trial"
n is stated that during the trial OF be-
tween nine and ten days with one eXcep-
tion so far as discovered ,when the Dis
trict Attorney united with hln) every
appeal by defendants counsel to the dis
erection OF the court for an adjournment
for the very common leave 20 reopen the
examination OF a witness in order to cor
rect some inadvertent admission or 10
utilize on croes-eXaminat'on OF hostile
witness some newly acquired Information
or 70 call a witness who had been absent
vas denied. whereas applications OF
similar character on the part OF the people
we're quite uniformly granted.
Repeatedly the court refused to allow
the defendants counsel to have for the
purposes OF cross-examination. as he was
entitled 20, some paper In the possession
Of the District Attorney or in the files OF
the court. II is said that some OF these
adverse rulings passed beyond the limits
Of discretion and were erroneous as mat
ter OF law. while others tended unneces-
sarily and rwarran.sbly to embsrrass
and hamper defendants counsel. and In
that connection II Is stated that errors
were committed In excluding evidence on
oross-examination OF the opportunities
which Rose. Weber, WALTON and Schepps
had for constant communication and con-
ference with each other about their evil
dence while they were engaged in the
common undertaking OF attempting TO
save their own lives by placing in forfeit
that Of Becker"
at IL pointed out that the trial Judge
assumed what seems to have been a DIFF
fsrent attitude toward different wit
neoses that some OF those called by the
defendant or by the people and who
proved disappointing to II were treated
with q harshness and manner OF sus-
picion which. Notwithstanding any OF
their defects, was in marked contrast with
the treatment accorded TO the Peoples
witness. Schepps, who was protected by
to court In various ways
JsAse Miller's Niews.
Judge Miler's concurring opinion fol-
lsws
~ concur with my brother Hiscock.
Tho conduct OF the trial was grossly I'M
fair TO the defendant Indeed, 1t is i'm
possible to portray In an opinion the spirit
Of unfairness which pervades the record
from cover to cover. A careful reading
Of II has created, and consequent study
mind that tho verdict was produced by the
compelling influence Of a forceful Judge,
whose prejudgment of tho cause had UNI
consciously created predetermination TO
convict the defendant.
TN my opinion II would he q reproach
the verdict to stand. But I reach that
conclusion for the additional reason that
the verdict Is against the weight Of the evil
dsnce, and. although a majority OF the
court do not consider II necessary to pass
upon that question. l am impelled by the
dissent Of my brother Werner to state my
view Of the facts
Continuing. his decision saws:
IN my opinion n new trial should BE-
granted because the newly discovered
evidence tmperatively demands 1t in the
interest OF justice. because the verdict
10 sitockingly against the weight OF
evidence. and because the trial was
30 conducted as 10 insure a verdict oil
guilty regardless OF the evidence"
The DissepttHs ODiaion.
In his dissenting opinion Judge wer.
ner says:
The prevailing opinion. II seems u
me- forever disposes OF the great issue OF
fact which IL 10 the province Of jury
10 decide Judges may differ As te
the effect and weight OF testimony bu,
II still remains the law that when ar
issue Of fact In created In A case triabi.
by Jury the character OF the witnesses
and tho weight OF their testimony can
not be disposed Of by this court even IL
case involving tho death penalty.
1T matters not that We may Z,
thpoiRh thu for7v, NJ ovdsrin~ Wan, So