The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-05-26
u RULES OUT EVERY.
POINT IN C. p
Decision Written by Chief Judge Bartlett Also Upholds
~Seabury's Conduct of Case-Judge Hogan
Alone Dissents From Ruling.

ALsASy. May 25.- Chief Justic,
Bartlett's decision denying ex-Polic'
Lieutenant Charles Becker new
trial in part follows:
"As has often been said, proof Of tn,
existence OF a particular motive is no
essential to establish the guilt OF 6
person accused Of crime.
But when the existence Of a par,
ticu,ar motive Is suggested 1t become.
exceedingly important to inquire .,
to the probability or possibility Of It.
having been the actuating cause Of
the crime. A cogent argument in ia.
/ vor Of the defendant In this respec,
merits consideration. II is said tina,
inasmuch as Rosenthal had Just taken
steps to maioe public his charges
against the defendant by offering
them to a prominent New York news.
paper. Lieut.. Becker must have known
that any attack upon Rosenthal al
that time would almost certainly be
attributed to his agency. and therefore
that a man of his intelligence. how
ever inimical he might be to Rosen-
thai, would not have permitted a MUIR
derous assault upon him at a juncture
when the circumstances would al
most unerringly point to him as the
author of the crime.
The sum and substance OF the ar
gument is that II IL impossible to be-
lieve that Becker would have been 80
foolish as TO order or induce the MUIR
der to be committed at a time when he
himself would almost certainly he the
one man in the city of New York who
would be suspected OF completely
therein.
Criminals Usually Blunder.
This was a proper matter TO be
considered by the jury and We must
assume that they considered II. 1t can
not be laid down as a matter OF law
that a jury Is bound to hold that a
specified event has not occurred he
aus its occurrence involves unwise
or foolish or laundering conduct on
the part of the accused person. In
deed. the propensity OF criminals TO
blunder has long been recognized as
a Characteristic of great value In the
detection Of crime. The criminal re-
ports of England and this country are
full Of cases in which guilt has been
fastened upon the defendant by rea-
son of the omission of some slight
precaution or the commission Of some
apparently insignificant act which
would have seemed almost impossible
in the ease OF n person OF ordinary
sense.
Extensive as is the power OF re-
view invested in this court on an APP
peal from a judgment Of both, the law
does not intend to substitute the Con-
illusions Of fact which may b. a wn
from the evidence by seven Judges
for the conclusions of fact which have
been drawn from the evidence by
twelve jurors. unless we are clear
that the view of the facts taken by
the jury is wrong. 1t is our duty
10 affirm II the trial was fair and with
out legal error and the verdict was
not against the weight OF evidence.
I'VE are to see to IL that the trial
was fair and to see there was sufi-
cient evidence within recognized rules
OF law to support the verdict; this
done, the responsibility for the result
rests with the Jurors.
Guiding our action by these estab-
lished principles OF criminal proce-
dure In capital cases, we do not feel
justified in interfering with the ver-
dict.
who Was the Instigatorf
THE case as presented upon the
second trial differed. materially from
the case as presented upon the first.
The actual killing of Rosenthal by
The gunner was not controverted, nor
was the agency of Rose. Webber and
WALTON in employing them. The ques-
ton was, who instigated Rose. Web
Der and WALTON to cause the murder
TO be done? Were they moved TO
act by the fraternity of New York
gamblers largely represented on the
sam Paul excursion. who dreaded the
destruction of their business by Rosen-
thal's threatened disclosures, or did
they hire the gunner to shoot Rosen-
thai at the instance Of Lieut.. Becker?
There is nothing to indicate that
the gunmen were actuated by any
personal hostility toward the mar they
killed. They were simply murderers
of hire. Rose. Webber and WALTON
admt their own completely IN the
crime but claim to have been set In
motion by Becker. Upon the truth
or falsity of their testimony to this
effect depends the guilt or innocence
OF the defendant.
Being clearly accomplices as mat
ter Of iaw ,as the court correctly
c%harGed) 1t va necessary, In order
to warrant a conviction upon their
testimony. that It should be corrobo-
rated by other evidence tending TO i'm
plicate the defendant In the murder.
"Of course these accomplices were
very bad men; accomplices In murder
always are, but It is almost a truism
In criminal law that II the testimony
OF bad men were absolutely reject.I
many murderers would escape the
Jidee Dike In Rrooklvn for Soruarv -