New Britain herald., 1915-07-29


 "Kaufman's two affidavits detail cer- tain conversations with Bridgie web- Der. Rosenthal Mrs. Rosenthal, ApeI- baum and one Muttle, very little of which would be admissible under the rules of evidence
 "So of the affidavit of Edward J. Ginty, which purports to give the sub stance of a conversation had with Rose, to the effect that it was not in- tended that Essential should be killed that Rose had more than $5,000 in his possession to be given to Rosenthal for the purpose of getting him out of the way. and that Rose was shocked and disappointed when he heard of Rosenthars death The only theory on which this evidence could be con- sidered competent is that it might be introduced to inpeach or contradict Rose. But such proposed evidence is clearly of no weight upon this motion according to the decision cited above
 Same With Murphy's Affidavit.
 'sThe same may be said of the affi- davit of the convict Murphy. If what he swears to would be admissible at all, it would be for the purpose of i'm peaching or contradicting Webber or other witnesses for the state Murphy swears that in the Tombs he heard Rose, vallon and Webber discussing a plan to frame Becker
 Isaac W. scohen's affidavit tends to show merely that Rosenthal had a note of the late Senator Sullivan which the afsaint sought vainly to have discouNted. This is immaterial except upon the theory that other in- competent and irnmaterial evidence proposed should first be admitted as a, foundation.
 ..T,ewis Harris in his affidavit swears thai la overheard Webber say to the ners,n known as Dollar John: If you stlire with Herman we'll take you the same as we are going to take him." and that Itose admitted to him in ef- feet that the evidence connecting the defendant with the killing of Rosen- thai had been fabricated. This afh- davit is prolix and for the most part rambling ju;lble of irrelevant hap penings anu conversations. Whatever relevant matters 1t contains would Ge admissible only in contradiction or impeachment of Webber and Rose, and therefore unavailing here.
 Marshall AffSdayit Jmmaterial
 The, aifidavitl of the Rev. James B. Curry becomes ilnmatcrial in the view take or the defendants 5 statement as before indicated. Futner Curry's affi- davit is intended II cle.y to show that defendants statement had not been fabricated for the purposes of this mo- tion
 "Harford T. Marshall svears in his affidavit that, in a conversation pe- twce n him, us lawyer, and Webber as his client, the latter told him that Eecker had noil1ing to dc with the killing of Rosenthal Assuming that this statement WAS rat privileged, it f.lls under the condemnation of the decisions as merely tending to inn peach or contradict a Nitress for the people.
 .sMr. Mcintyre and MT. Manton make aff1davitis to their not knowing at the time of the last trial about the matters detailed in he defendants statement. The fatal fact is that the defendant himself did know about them at and before both of his trials.
 Deputy Warden Johnson merely swears to what occurred when he took the af1ant Murphy from prison to see Governor Whitman. and this is Of no consequence in the view I take of the proposed new evidence offered on this motion.
 AS to Apelbaurn's affidavit, which related to conversations between him. self, the defendant. Senator Sullivan and others, 1t contains nothing of moment which was not known to the l defendant before his last trial Fur thermore, he knew that Apelbaum knew about those conversations, and he was available as a witness The law requires reasonable diligence on the part Of the defendant in produc- ing evidence upon the trial. s Evidence Not Competent.
 Mot only is the proffered evidence open to the objection mentioned, but 1t is for the most part cumulative and 1 hence insufficient by the express lan- guaEe of the statute. People vs. l Shea, 16 Misc. lib
 1T am of opinion that when sub- l jected to the test of the statute and 1 the decisions there IS not enough com. petent evidence proffered to have the result had II been receiy- 1 cd upon the trial.
 Upon the argument and in his | counsel for the defendant l invokes the inherent power of the | court to grant new trial. cannot | find anywhere in the authorities even l 8 suggestion that this court possesses i any such power On the contrary, as | has been pointed out the power is granted by statute and must be ex- | ercised in strict compliance with 1t People vs. Court of General Sessions. | 112 A. D., 424; affirmed, 1855 N. Y., | 5O4) In shat case MT. Justice Clarke |