New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1915-06-11
Overlooked Evidence That
Rose, Defendant, Had
Motive, Is Charge.
SEABURY CRITICISED
IN REARGUMENT MOVE
Counsel Says Without Error Ac-
quittal Was POssible-May
Get Decision Tuesday.


to Charles Becker overlooked evidence
on the second trial that Becker had no
motive for killing Herman Rosenthal
and that Jack Rose had. Martin I. Man
ton and John b. Johnston, Becker's at
torneys. will to-day file with the AL
bany tribunal the brief asking reargu
ment before that court on those points.
The brief was served at 8 o'clock
yesterday afternoon on Assistant Dis
trisS Attorney X. c. Taylor. in charge
"a 5ne Appeal Bureau He is required
to file his brief in opposition by Mon
day. 1t is quite possible that the
Court Of Appeals will announce It's de
cision by Tuesday. Otherwise it will
undoubtedly come week later.
At the outset the brief states that
the facts alleged to have been over
looked by the Court of Appeals were
established by the prosecutions wit
nesses, and are:
"First-Rose, concededly the person
who arranged the murder, had himself
an overwhelming motive for desiring
the death of Rosenthal-a motive vastly
more powerful than the one attributed
to Becker by the prosecution; and,
"Second-It was shown by the main
witnesses for the prosecution, Rose
and Weber, that they themselves had
rendered Rosenthal entirely unable to
injure Becker, and this fact having
been made known by them to Becker
before the murder, he could have had
no possible reason for urging them
to commit the crime, but every reason
TO prevent it, if prevention were within
his power"
Court Misled. Brief States.
Justice Seabury, who presided at the
second trial, it is declared, did not
submit these important facts-urged "
tn defendant in his behalf at the
trial-or even mention them to the
jury in his charge, "and the character
and scope of the charge was such as
practically to exclude them from con-
sideration by the jury. And in this
court Court of Appeals, too, they
have been overlooked, with the result
the question which, on the evidence,
should have been submitted to the jury.
"The overwhelming motive of Rose
for desiring the death of Rosenthal, es-
tablished on this trial by witnesses
for the prosecution, raised a question
radically different from the one de-
cided by the jury on the first trial.
Yet the whole significance of this evil
dence was so Inexperienced by the
trial judge that the question actually
submitted to the jury was the same on
both trials. And the opinion shows
that this court had been misled into
the same msconception of the question
raised by the undisputed evidence taken
on the second trial.
This courts conception of the ques-
ton which the jury was required to
decide is stated in the opinion:
1.-The question was, who instigated
Rose, Weber 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 Ro-
senthal's threatened disclosures, or did
they hire the gunner to shoot Rosen-
thai at the instance of Lieutenant
Becker
"This was indeed the question sub
mitted to the jury by the trial court.
II states fairly the question presented
by the testimony of the first trial. But
i, was not the question actually raised
by the evidence on the second trial, and
therefore it was not the question which
should have been submitted to the jury
for it's decision.
Charge Rose Feared Death.
"On this (the second) trial the evil
dence furnished by the prosecution out
Of the mouths Of its own witnesses
showed not that the assassins were
moved to act by the fraternity of
New York gamblers. but that Rose had
himself the strongest possible motive
for desiring Rosenthaps death, and
that was the desire to save his own
life, which he conceived to have been
imperilled by Rosenthal and to be in
deadly peril so long as Rosenthal re-
manned alive"
Rose, or the stand, it is pleaded, ties.
tilted that long before Becker asked
him to arrange Rosenthal's death Jack
Zelig, the gang leader, regarded him as
the man responsible for twice causing
Zeligs arrest. To placate Zelig Rose
raised 1880, by which he engineered
the gangster's release on bail. Rose
further testified, it is pointed out, he
believed Rosenthal had told Zelig the
story, which so aroused Zelig that the
ganCster, when arrested the second
= time, remarked to Rose: "If am sent
away for fourteen years my friends
will take care Of you"
Therefore, the defendants attorneys
contend, Rose, fearing death at the
hands of Zelig's friends, became con-
vrced that by Rosenthal's death he
would be exposed TO fewer dangers
than if Rosenthal were permitted to
live and continue to infamc Zelig and
his gangstcrs against Rose.
When Justice Seabury began his
charge, the brief states, he said:
ait will be my duty to outline to you
as briefly as the evidence will permit
the several contentious that are made
by the parties to this action"
"And at the close the charge said:
"'The court has endeavored to de-
clare to you the rules of law that are
applicable to this case and to sum
Marie the evidence, in the hope that
il might aid you in arriving at a cor
rect conclusion based only upon the
evidence
"When n charge which begins by un-
dertakng 10 summarize the evidence
and closes by stating that il has sum-
married. the evidence omits TO men
ton certain facts established by wit
nesses the effect of the omission Is
practically 10 exclude that particular
testimony from consideration by the
jury"
"Cogcnt Argument" Omitted.
Further criticism of Justice Seabury
is contained in the statement that,
though the opinion Of the Court OF
Appeals held as "a cogent argument in
favor Of the defendant meriting con-
sideration," the contention that Becker
realized before the murder that the cir
cumstances would point 10 him as the
author of the crime, this "cogent argu-
ment" was not presented or even men