The New York herald., 1921-02-11
Grand Jurors Act After
Story by Woman Who
When Drying Hair OH
Roof Saw Tragedy.
ACCUSED MEN In JAIL
Witness Declares She Told
Same Tale to Grand jury,
Swami and Smith Two
Years Ago.
WHITMAN DIGS Up FACTS
Police Report Says Victim
Of Unknown Persons
Was Found OH Tenc-
ment Roof.
WHITMAN DIGS Up FACTS

The almost forgotten killing OF a
boy who was watching pigeons fly
from a tenement roof in West F'iftieth
street on a Sunday afternoon two
and a half years ago flashed back to
public notice yesterday in the most
sensational developments of Ex-Gov
Whitman's investigation of the Police
Department. Two patrolmen. Cornelius
j. Flood and Robert A. O'Brien, were
indicted on a charge of murder in the
first degree by the Grand Jury with
which Mr.. Whitman is working. They
we're locked in the Tombs without
bail
The boy was James Cushing, 10
years old, of 446 West Fiftieth street.
He was shot in the back while Flood
and O'Brien, then plain clothes men
Of the West Forty street sta
ton. were chasing him and his pals
across the roofs on the afternoon OF
July IA, 1915, Bastile Day. 1t is
charged that both policemen fired their
revolvers wantonly and that one OF
their bullets. striking Jimmy Cush-
ing in the back near the spine, pierced
his right lung and killed him.
That is as far as the indictment
goes. Outside the indictment there are
circumstan which arc bound 10
swing the investigation over wioe
field. including both the Police De
partment and the District Attorneys
Office Mr.. Whitman will have to de-
termine whether the superiors OF Flood
and OBrien tried TO protect them ana
conceal the facts. He will also have
TO find whether any one on the staff OF
District Attorney Swami shares in the
responsibility for the long delay in the
return of indictments.
Dismissed by Grand Jury.
A Grand Jury heard the testimony IN
July, 1918. two weeks after the shooting
and dismissed the case. Four montns
later District Attorney Swami rcopened
the inquiry at the request or James
Cushings parents, and personally ques
TONED the witnesses. as did also, for q
short time. James Il. Smith. Assistant
District Attorney. Nothing came of it.
Later the Almirall Grand Jury got
complaint that something was wrong
and that Flood and O'Brien should have
been indicted. Its information ana
other material were turned over 10 Mr.
Whitman. He started digging into 1t on
wcdnesday. That night he and Mr.
Smith spent hours rounding up and
questioning all they could find of the
original witnesses. Some of these they
took before the Grand Jury yesterday.
The two indictments followed.
Mr.. swami says there was no indict-
ment in 1918 because no one would swear
10 having witnessed the shooting. MI
Smith says that no one ever told him
the complete story az it was unrolied
before the Grand Jury yesterday. 10
insists that witnesses were afraid OF the
police in 1918 and are not now.
Mr. Whitman will insist upon ascer-
tanning lust what the testimony before
the Grand July in 1918 amounted TO. He
has already asked for the minutes ana
expects TO get them to-day
OmciaI Police Report of Case.
As far as the present case goes. to
Mr.. Whitman there is nothing more
curious than the fact that although
Flood and O'Brien have since admitted
that they went 10 the roof TO round I'D
lot OF turbulent boys, that one police
man trlpped and his revolver was ac-
cidcntaiiy discharged as he fell, that the
second policeman ired a shot because he
thought his partner was being attacked
although they have admitted this the
only entry made IN the biotter OF tho
West Forty-seventh street station mouse
on the night Jimmy Gushing was
killed was this:
Body OF James Cushing found on
the roof OF $40 West Ftftieth street.
shot by person or persons unknown.
II is charged that Flood and O'Brien
after the shooting paid no atter-
ton 20 The body OF Cushing. but
arrested two boys who had beer
foollng on the roof With Gushing. took
them to the station house and the ueSs
morning appeared against them and had
then fined SIS apiece. for lack OF which
The boys spent three days In Jail Flood
AMI O'Brien will undoubtedly say when
they come TO defend hemsclvcs--the
said nothing last night and appeared 10
10 greatly surprised and upset by their
indlctment---thst they had no idea they
had bit anybody with their random
shots and did no; see Jimmy Gushing as
he lay dying on roof nfty feet away.
shooting seen by Woman.
The principal witness against them s
Young woman who. when Cushing was
shot was sitting on an adjoining roo
drying her hair She says she saw
everything She was then Miss Alice
Smith OF 52i West Forty-ninth street
She Is now Mrs. Kenny. and had a hand
some baby in her arms when she went
TO the Criminal Courts Building yester
day to testify before the Grand Jury
She swears that on the morning after
the shooting she went 10 tha West
Forty-seventh street station andS thsr.
picked out Of n lineup OF several men
Flood and oBrien a. the pair whom