The New York herald., 1921-02-12
ANTI-POLICE DRIVE
BLAMED FOR TWO
COPS INDICTMENT
0'Brien and Flood $50 Feet
Away When Boy Was
Killed, Says Lawyer.
SURE OF ACQUITTAL
SURE OF ACQUITTAL
Girl Tells She Saw Accused
Men Shoot Cushing When
Only 20 Feet Away.
YELLED AT THEN TO QUIT
Records Show Capt. Mckinney
Laid Lads Death to Careless
Shooting by Men in Tombs.

ne QtitbNt VI iNObtle - - AfAASAA
and Cornelius j. Flood. policemen,
against the charge of murder on which
they were indicted on Thursday on
evidence presented by Charles 5.
Whitman, was outlined yesterday by
their counsel, Eugene MCGEE. After
terrning the indictment as "the great
est outrage ever perpetrated," Mr.. Nc
Gee said:
These men were exonerated IN 1918
by a Grand Jury which heard the
same testimony as that introduced by
Mr.. Whitman. They also were put on
trial at Police Headquarters and ac-
and made a part of general attack
on the Police Department.
"The body of the boy. James Cush-
ing, whom Flood and O'Brien are ac-
cused of killing on the roof of a build
ing in West Fiftieth street on July Ia,
1918, was found $50 feet from the spot
where, according to the undisputed
testimony. the policemen stood when
they fired.
Flood and OBrien have always ad-
mitted that a shot was fired by accident
when one of them stumbled. The death
of the boy could only have been the
result of an accident unless he was shot
by somebody else, which was probably
the case. Flood and O'Brien did not
know that Cushing had been hit or that
anybody had been hit until several hours
later when the body was taken TO the
West Forty seventh street station house.
/ shall go into court on Monday and re-
quest that my clients be placed on trial
Immediate ~
Early Trial VIII BE Granted.
James T. Smith, Assistant District
Attorney, on whose application the case
was resubnitted TO the Grand Jury on
Thursday, said: 1--WE shall crafty Mr..
McGee's desire and be ready for an early
trial
flood and OBrieu are in the Tombs
and will be arraigned for pleading in
General Sessions on Monday.
The mystery of the failure to indict
them In 1918 and for two years there
after, assuming that the evidence was
available throughout, was not lessened
WREN Miss May Burnes. one OF the two
girls who saw the shooting, told her
story yesterday in the presence of MIR.
Smith She said she had felt It to be
her duty TO the parents of the boy TO
tell ths truth and had told IL before the
Grand Jury in July, 1918. TO District
Attorney Swami ana Mr.. Smith in No
venber, 1913. and before the Grand Jury
which Indicted Flood and O'Brien on
Thursday of this week.
She said she saw. from an adjoining
roof, both policemen fire point blank
saw the crimson stain spreading on the
back OF the Cushing boys shirt as he
ran from them, saw him drop to lower
roof, climb 10 a higher roof and then
drop. and saw the policeman drop TO
the lower roof and beat two boys against
whom the policemen pressed their re-
voivers She said that she and Alice
Smith. now Mrs. Kenny, the other eye
witness. shouted 10 the policemen.
leave those boys alone !" and that the
reply was. Mind your own business! J"
she insisted that when Gushing was
shot he was not more than twenty feet
from the policemen, and that they must
have seen. as she aid, the stain rcddenr
irg his shirt-ths last. Of course, being
an opinion which could not be offered
on the witness stand.
On Thursday Mr.. Whitman. intent on
finding lust what the testimony was
that caused the Grand Jury TO exoner-
ate Flood and O'Brien two and a half
years ago. called for the minutes. They
had never been transcribed from the
shorthand. This was done yesterday,
hut the transcript was delivered after
Mr.. Whitman had gone for the day. He
cannot reveal them. II Is understood
that. although the two girl eye witnesses
now say that they have given the same
testimony each time they have beer
called upon. they we're questioned more
fully by Mr.. Whitman than they were
before the Grand Jury in 1918.
Accused Men Got Police Trial.
Lawyer McGee's statement that Flood
and O'Brien were tried at Police Head
quarters I'm 1918 andNacquitted is cor
rect Their Captain, Charles Mckinney
was on vacation when the shooting tool
place. but on July 2s. 1918. he made
formal charges that the two patrolmer
had "carelessly and negligently dis
charged revolvers." causing Cushing
death. In the complaint Flood was sale
10 have been standing on the roof o
b1s West Frftieth street when he fred
and OBrien on tho roof Of No. $40
After trial at headquarters the cas-
was dismissed. Flood and O'Bricn pu
In the same defence as they do now.
Louis Fridiecr. counsel for Martir
s. Owens and Thomas j. Horan. in
dictcd members Of the police automobile
cuiau. charged McSsrS. Nnitfuans Sfiiti
und associates yesterday with malSini
false and misleading statements fo
the purpose Of creating "a prcjudicia
vubllc atmosphere" Mr.. Fridiger tool
rp the statement made last week tina
Insurance men had reported 10 Mr.. Whit
man the cessation OF automobile steal
ing since his investigation was begun
The truth is. Mr.. t'ridiger said. tha
more cars have been stolen since mem
bera OF the automobile squad were IN
ricted than ever before and the re
covery thereof has fallen Off more tha
500 per cent.
George " Brothers an Assistant Dis
trict Attorney. originally appointed b
Mr. whitman when he was chief Of Tn
oricc. was assigned yesterday by Mi
swann to assist In tho Whitman invosti
natIon. lie viii probably act rs IN
rcoplo's attorney upon trial OF the in
dIctments
The Grand Jury Will meet again o
T1iesday. when IL Is expected 20 TAX
eone action regarding . Fire Depart
ment indictment. which has been hang
Ing are An upstate District Auorne,
who was said to have Information dove
ta4linr with Mr.. Whitman's regardin
enc operations Of automobile thieves
had q talk .--sth Mr., Smith yesterday.