The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1915-05-26

Albany, May 26.--Tbe second con
yiction OF former Police Lieut.
Charles Becker for instigating the
murder of Herman Rosenthal, the
New York gambler, was upheld yes
terday by the court of appeals.
Becker now must die unless he can
obtain executive clemency from Gov.
Whitman, who, as district attorney
of New York, prosecuted him, or the
United States supreme court inter
feres by habeas corpus or other
wise.
Judge Bartlett, who wrote the op-
inion, from which only one member
of the court dissented, held that al
though the first judgment of death
against the defendant was reversed
because lie did not have fair trial,
the second judgment ''is not assail-
able on that ground" The opinion
held that the testimony Of "Bridgy
Wehber, BALD Jack Rose and
Harry Vallon regarding the so-called
Harlem conference" at which the
murder of Rosenthal was said to
have been planned, was true and that
it was corroborated on the second
trial by james Marshal Negro.
The testimony OF Deputy Police Com
missioner George A. Dougherty and
Charles b. Pitt. commonly known as
''Beckers press agent" also was
held to be true.
Pitt testified that Becker told him
to keep away from Times square,
near where the killing took place, on
the night of the murder. Dougherty
said Becker maintained two nights
after the murder that he had not
seen Rose for a week The prosecu-
tion insisted that this statement by
Becker was untrue and that he must
have known Rose then was in hiding
in the city and was being sought for
the murder
The statement made by "Dago
Frank" Cirofici just before his execu-
tion at Sing Sing that, so far as he
knew, Becker had nothing to do with
the killing of Rosenthal, was rightly
excluded from the evidence on Beck
er's second trial Judge Bartlett held.
1T is generally believed that a sense
of speedily impending death operates
to induce one to tell the truth, and
we are asked to hold that this in
iuence would be just as effective in
the case of any witness who is about
to die as it is deemed 10 he in the
case of victim of a homicide
Judge Bartlett continued. "As to
the argument in favor of admitting
evidence of such declaration as that
alleged to have been made by 'Dago
Frank ii may be observed that the
influence of approaching death might
be very different in the case of an
innocent victim of crime from what
ii would be in the case of guilty
murderer condemned to die. Unless
numbers OF innocent men have suf-
fered capital punishment in this coun
try, many criminals have gone to the
gallows with lie upon their lips"
Conversations between Rose and
Rosenthal, Rose and Zelg and Rose
and the gunner in the absence of
the defendant were properly admit
ted in evidence, the court held. Judge
Hogan, the dissenting member of
the court, merely went on record
against the affirmation and handed
down no written opinion.
The date for the execution VIII be
reset soon, possibly today. 1t usual
ly is dated about five weeks from the
time a decision is rendered, so it is
likely that June 25 or July will be
chosen. Lieut-Gov. Schoeneck will
act as governor between today and
June II, but there is no likelihood Of
his exercising executive clemency
during that period especially in this
case.