The New York herald., 1921-03-19
COP WHOSHOTBOY
ON ROOF IS GUILTY.
Jury Calls 1t Manslaughter in
Second Degree, and Urges
Mercy for Flood.
O'BRIEN YET TO BE TRIED
Whitman's First Conviction
Resulting From Inquiry
Into Police Affairs.

The result of the first trial resulting
from Ex-Gov. Whitman's investigation
of the Police Department is con-
viction. Patrolman Cornelius J. Flood
was found guilty yesterday in General
Sessions OF manslaughter in the sec
ond degree. A penalty Of fifteen years
Imprisonment or $1,000 fine, or both,
could be imposed, but the jury strong
ly recommended mercy because Of
Floods previous good character and
brief experience as a policeman"
Flood is to be sentenced next Thurs
day. His counsel, William ]. Fallon,
will apply for certificate of reason
able doubt. and It is believed he will
get IT. This will enable Flood to go
free on bail pending the hearing of
his appeal. Until Thursday he will
stay In the Tombs.
Flood and his partner. Patrolinan Rob
ert A. O'Brien, were indicted on a charge
Of first degree murder by the Whitman
Grand Jury several weeks ago. They
had gone to a roof in West Fiftieth
street In July. 1918, and fired their re-
volvers. Boys on the roof ran away
from them. One of the boys. James
Cushing. 10 years old was killed. The
policemen got separate trials.
On Thursday in Floods trial Judge
Mott dropped the murder charge from
the indictment. leaving only manslaugh-
ter. Mr., Fallon summed UP for the de-
fence yesterday morning and Mr.. Whit
man for the prosecution. Mr.. Fallon d.
rected most of his flre' at the testimony
OF the States two eyewitnesses Of the
shooting. Alice Smith Kenny and May
Byrnee. He said they could not possibly
have seen what they said they saw. He
advanced as the true explanation OF the
shooting the story told by Flood, or the
| accidental discharge of his revolver as
the policeman stumbled through a sky
light door.
Mr.. Whitman contended that Flood
had mot even concocted a real story"
He called Floods defence "silly. absurd
and impossible" He told the jury that
his own children and the jurors children
were safe because they did not have to
play on roofs. Then he pictured the
tenements. with no other place to play
into a group of harmless boys.
The judges charge lasted more than
an hour. The jury was out little more
than an hour and half. The foreman,
Melvin c. Haskell. announced the YER
dict. Floods wife and mother and other
relatives were asked TO leave the court
room before the jury appeared. Lawyer
Fallon was not in court when the verdict
was given. His partner Eugene +. Nc
Gee. applied for a certificate Of reason
able doubt. Judge Mott said he would
consider such an application after SEN
tence had been pronounced.
Mr.. Whitman said last night: The
verdict speaks for itself. / have nothing
else to say except that I rather concur
in the jurys recommendation for mercy
Flood, unlike his associate officer. had
had little experience on the police force"
Homicide is manslaughter in the
second degree when committed without
purpose TO kill. by a person trespassing.
or by the culpable negligence of any
person. Apparently Flood was convicted
under the theory of culpable negligence.
Judge Mott In replying to the request
for certificate OF reasonable doubt, re-
marked that serious legal problems were
Involved.
When Patrolman OBrien Is tried II
will be for manslauRhter. although he
is held I'm the Tombs without bail on
charge OF murder. II Flood Is admitted
to bail, O'Brien undoubtedly will be
also.