The New York herald., 1921-02-11

10 last She said she told IL peiore the
Grand Jury in July. 1918. to District At
torney Swami and his assistant, Smith.
in November. 1918, and to the Grand
Jury yesterday.
Grand Jury minutes are secret. but
knowing that the witnesses in the 1918
investigation also gave their testimony
in the form OF affidavits. which are now
on file in the District Attorneys office,
reporters asked Mr.. Swami If they might
see them. Mr. Swami was at first will
ing but Mr. Smith said he was sure
that their disclosure would interfere with
Mr.. Whitman's investigation and show
the hand" of the prosecution. Mr..
Swami acquiesced.
Swami Overrides smith.
Over MIR. Smiths objection, the Dis
trict Attorney did make public list OF
the Grand Jury witnesses in 1918. He
then read the affidavit OF Mrs. Kenny
and. handing it back to Mr.. Smith, re-
marked that the case had been thorough
ly worked up in the first instance. He
said also it was his impression that
when she was questioned In 1918, Mrs.
Kenny did not say that she saw the
shooting and knew who did it,
That is not So said Mr. Smith TO
his chief. You can't find anything in
her affidavit denying she saw the kill
ing"
II being agreed that the important
thing was 10 find out exactly what ques-
lions had been asked her before the orig
NAL Grand Jury and what she had an
swered, the debate was then adjourned
pending reference to the stenographic
minutes OF the Grand Jury which heard
the testimony in 1918 and found no in
dictment
Flood and O'Brien were witnesses at
tnat Time They uyaf i,,op nd
until yesterday they. as well as the pub
nc, supposed that the case would never
rise to plague them again. The assist
ant District Attorney who presented the
case TO the Grand Jury in 1918 was
John j. Joyce.
story of killing on the Roof.
Cushing was Is years ord. He had
feen graduated from the parochial school
OF the Church Of the Sacred Heart, In
West F'ifty-first street, and had gone to
work for a firm In Tenth avenue at SIG
week. The money, in a sealed en-
velope, he tooS 20 his mother on Satur-
day nights. His father. John Gushing,
is post Office employee.
His playground on Sunday afternoons
was the jumble of roofs above his own
and the neighboring tenement houses.
On Sunday, July IA 1918. he went 10
church, had dinner and went to the roof
with two other boys. John st. John and
James Brickley. They were joined by
three or four others. 1t is assumed that
some OF them were trying to trap pig
cons.
On the coping of the tenement house
adjoining theirs and facing Forty-ninth
street Alice Smith. then IT years old.
was drying her hair With her during
part of the subsequent proceedings was
May Burnes of 492 Tenth avenue. but as
Miss Burnes was not called into the
Grand Jury room yesterday it appears
that she did not see the shooting
Having nothing to do but sun the
moisture out of her hair. Alice Smith
(now Mrs kenny watched the boys
play. Suddenly she heard one of them
shout "Budso!' This is the cry of the
modern city boy warning his mates of
the appearance Of a cop. Years ago it |
The word has squirmed it's way into the
language from the Italian.
Boys Run as Police Appear.
The boys darted westward along the |
roofs. At the same moment Alice Smith |
saw two men appear on the roof. One
emerged from the house at SIS Wess |
Ffftieth street, the other from $50. |
Each, she says, had revolver. They
walked toward each other and as they
met began firing. Their first two shots
sounded almost together. Then at in
tervals were three more--fve in all.
At first Alice Smith thought blank
cartridges left over from Independence
Day, were being fred for the fun of It. |
Two OF the boys had jumped to a roof
lower than the rest and were out of
sight of the two men. Jimmy Gushing
had raced ahead OF them and crossing |
this sort Of ravine gained the higher
roof of the house at No. $40.
She was watching Jimmy run, when
he suddenly fell on his face. She had
already come to the conclusion that the
men were not on recreation bent. The |
woman says that when she saw the
Gushing boy fall she took in the two
men with almost the same glance and
saw that both had their revolvers
pointed at the spot where he fell She
says she screamed:
THAT boy is shot; you've shot a boy"
But the two men. she says, paid no
attention to her. Jumping to the roof |
on the lower level. she says, the men |
pressed the muzzles of their revolvers |
against the stomachs of James Brickley |
and John St. John, who were covering
there and then beat them over the
heads with the weapons. Alice Smith !
says she shouted at the two men: You
leave those boys alone" but still they
ignored her.
March Captives From noof.
Next the men. according TO Alice
Smith. marched their captives to the
skyight door of No. 500 and disap-
peared on their way TO the street. The
TWO men who did al. this, she insists.
were Policemen OBrien and Flood |
whom she picked out In police station
lineup the next morning.
But 1t vas neither O'Brien nor Flood
who reported at the station house that
dead boy lay on the roof above West
Fiftieth street. dog belonging to a
Mrs. Haas set UP a barking on the roof.
Mrs. Haas assembled Across the chim-
/ eys and scuttles she saw a boy lying
Meanwhile Mrs. Margaret Flynn Of 52s
West Fiftieth street had popped out OF
her house. attracted ly the noise of the
shooting.
She reached the Cushing boy first. lie
was still breathing. but died as she put
her arms around him. Another boy who
, had been attracted TO the roof by the
shots, Charles Haneman of sac West
Fiftieth street. leaned over the cornice
end yelled down to uniformed patrol
ian i'm the street that a boy had been
killed.
That cop was Patrick Gilshinan. lie
looked at the body, and IL was he who
reported at the West Forty-seventh
street station that James Cushing had
a..