New-York tribune., 1921-03-18
Charge of Murder in First
Degree Against Police
man Accused 6f Killing
Boy Is Thrown Out
Death Declared Accident
Defendant Testifies Pistol
Was Discharged When He
Stumbled ON the Roof

: caAA'SS SuSHiuS III Juiy, 1910, wa.
dismissed yesterday by Judge Mott il
General Sessions, and when the case
goes to the jury to-day it will be OF
9 charge of manslaughter.
Judge. Motifs ruling is expected tt
affect the tria, of Patrolman Rober,
A. O'Brien. indicted Jointly with FLOOD
for the murder of Cushing.
Following the action of the court
William J. Fallon, counsel for the de-
fcnse, moved that the manslaughter in.
dictments be dismissed also, but this
was denied.
The defense closed it's case yesterday
afternoon and to-day will be devoted
to summing up. This phase of the
trial will be handled by former Cover
nor Charles S. Whitman, in the course
Of whose investigation of the Police
Department the Flood and O'Brien in.
dlctments were returned.
Fails to Call Star Witness
Assistant District Attorney John F
Joyce, to whom the accused patrolmer
and the various witnesses in the case
had made statements in 1918, immedi.
ately after the shooting, was to have
been the star witness for the defense
but at the last minute Mr.. Fallon de-
cided not to call him.
All of the witnesses called by the
prosecution made statements in the
present trial which in most cases were
al complete variance with those they
are alleged to have made before Mr.
Joyce and the grand jury in 1918.
MIR. Faslon apparently surprised Mr.
Whitman and Assistant District Attor-
ney Brothers, also engaged in the pros.
ecution of the case, when he called to
the stand yesterday Detective John J
Lunson, now under indictment for per-
jury and bribery. Gunson testified that
carrier in the day he had visited the
scene Of the shooting, the roof Of q
tenement in West Fiftieth Street. at
the request of Mr.. Fallon.
Gunson declared that careful sur
Hyey Of the premises convinced him
mat May Burns and Mrs. Alice Smith
Kenny, witnesses for the prosecution,
could not have seen the shooting of
young Cushing from the roof of their
nome IN West Forty-ninth Street, where
they were sitting when the tragedy
occurred.
fiood Explains Shooting
Flood was the principal witness in
his OWN, behalf yesterday and his ex-
planation of the shooting was that
while forcing trap door leading to
the roof of the house at SIS West Fif-
vclver, recently oiled, had exploded
prematucely. At the time, the witness
declared, he and O'Brien were inves.
tigatlng an anonymous complaint re.
ceived at the West Forty-seyenth
street police station about boys shoot.
ing craps and flying pigeons on the
roofs OF the West Fiftieth Street
houses.
Flood accounted for the fact that he
had drawn his revolver by saying that
when the trap door refused to open he
nelleyed that some one on the rooftop
was holding it against him. Immedi-
ately after his gun was accidentally ex-
ploded, Flood stated, he heard another
shot, presumably fired by Patrolman
'Brlcn, who had gone to the roof
through the house next door. Flood
said he then fired second shot, think
ing C'Brien was being attacked. He
die this, he said, with the idea of dis
converting the person supposed to be
a.saeking o'Brien and attracting the
attention of the policeman on post.
Flood told the ;ury that he had been
appointed patrolman on February 26,
1918, and that he had entered active
service some six weeks prior to the
Gushing shooting. The witness swore
that just before his gun went off un-
expectedly, discharging the bullet which
is supposed to have killed the boy, a
brick was thrown at him which narrow
IS missed his head. He declared he
did not know that boy had been shot
until informed of it some hours later
At the Forty-seventh Street Station.
Described Tragedy to joyce
Flood said that after the shooting he
went to the Distr-c Attorneys Office
several times and related the details
of the affair to Assistant District Al
torney Joyce. After signing q waiver
ct immun ty he later told his story to
the 1918 grand jury, which failed to re.
turn an IND ctment against either him
sell or O'Brien. He heard nothing of
the case from that time until the nipht
OF February Il last, when he was in
formed that he had been indicted for
1rst degree murder.
Flood test fed that he was twenty
of two children. He also den;ed tn at
ne had struck either Brickley or St
Jonn, the two boys whom he arrested
place. soS0
Ine cross-examination of Flood bv
former Governor Whitman was marked
by q series of tilts between the prose
cnt,on and defense. Several times Mr.
faApn protested against side comments
r,' H0n mr. whitman made concerning
Floods testimony .
MI Whitman asked Flood where the
brick he had mentioned in his direct
examination had struck. The witness
was unable to tell and was vague in h;s
references to the missile.
Inc witness clung to his story that
thes gun he carried had exploded acci-
denfnlly. With the revolver in his
hand Flood demonstrated to the iurv
5 how he had stumbled out upon the roof
and how, when he stumbled. his fingers
contracted and caused sufficient pres
sure, on the trigger to fire the gun.
WF. Fallon requested that the iurv
be permitted to visit the scene Of the
shooting, but this was denied by Judge
Mott on the ground that the photo
erarus in evidence were sufficient aid
70 The jurymen in making their de.
cistons.
Assistant District Attorney Brothers
I was called to the stand by Mr.. Fallor
and qufzzed as to the whereabouts o1
the stcnographer who took the testi
mOny of the witnesses before the Crane
jury in 1918. Mr.. Brothers declared
that efforts to locate the stenographe,
had proved futile.
Character witnesses called in behalf
Of Flood included Inspector John
Q'Hrien, chief of traffic; the Rev
Father Bernard F. McQuade, curate OF
st. Patrick's Cathedral, and Police Cap
tain Michael J.. Ahearn. All testified