People v. Buchalter (289 N.Y. 181, 1942)

Conway, J.

The defendants were indicted with three others for the crime of murder in the first degree. They were represented by able counsel during a.trial which lasted about eleven weeks. The record of the trial consists of more than four thousand pages in addition to the twenty-seven hundred pages containing the examination of talesmen.

The questions of law presented by defendants’ counsel may best be examined agáinst the background of the facts as found by the jury and the facts are therefore set forth with reasonable fullness as a preface.

The deceased Joseph Rosen was present in his small candy store on Sutter avenue in Brooklyn on Sunday morning September 13, 1936. An automobile was driven up to the door of his store. The occupants riddled the body of Rosen with bullets. There were ten wounds of entrance. One Stamler, a tailor, at the sound of the shooting, looked through his window across the street, saw the automobile pull away and took the license number. A few minutes later an automobile turned the comer of Livonia and Van Sinderen avenues so quickly that the brakes or tires screeched somewhat and attracted the attention of Merlis who had a newspaper stand there. The automobile came to a stop about forty feet from the corner and four men emerged. They walked toward the newspaper stand and up over the trestle which crossed the Long Island Railroad track at that point and which led down into Junius street. The automobile thus abandoned,— a black two-door Chevrolet coach,— had the license number which had been taken by Stamler.

The theory of the prosecution’s case was that the defendant Weiss was one of the slayers; that the defendant Capone was one of those who had arranged for the murder, who had laid out the route to be taken by the automobile used in it and that he and others were waiting with two cars at the other side of the trestle on Junius street, to assist in the escape of the slayers; that the defendant, Buchalter, referred to as Lepke by the witnesses throughout the trial, had ordered the death of Rosen through fear that he would testify against him in the so-called Dewey investigation, involving racketeering and extortion. There were three others named in the indictment: Harry Strauss, who had been executed prior to the trial (see People v. Goldstein, 285 N. Y. 376), James Ferraco, who had not been apprehended, and Philip (Farvel) Cohen as to whom a separate trial had been granted by consent.

All of the defendants- were represented by experienced counsel. Buchalter and Weiss were each represented by two attorneys, each of whom was permitted by the court to participate actively in the trial. It is important, for the purpose of discussing one of the law points affecting the charge of the court, and for no other purpose, to indicate and comment upon the defenses interposed by each of the three defendants on trial. The defendant Capone did not testify and called no witnesses. The defendant Weiss did not testify but called witnesses. He called his mother, his two brothers, his wife and a family friend to testify to an alibi covering the period prior to and at the time of the murder. He also called another witness to impeach the credibility of a prosecution witness, Bernstein. The defendant Buchalter did not testify but called witnesses for the purpose generally of establishing that the deceased was a person of no importance financiallly or in the business world; that the testimony of the wife, daughter and son of the deceased as to the business venture of the deceased and its financial condition was unbelievable, whereas the position of the defendant Buchalter was so important that it was incredible that there was any reason for the defendant Buchalter to order or direct Rosen’s death. This was more clearly shown from the language of counsel for the defendant Buchalter in his summation as follows: “ I said I did not represent an angel, I meant just this: I condemn the defendant Buchalter’s past life with as great vehemence as I possess. I am not in sympathy with his activities in the past — I condemn the vicious circle which contrived those people to domineer unions — the racketeers Weinstein and Katz. I condemn them with all the strength I have. It is they who prey upon innocent workmen in this city. I condemn the manufacturers and employers who did not complain to the authorities so that they could put an end to this vicious practice of preying upon labor. But they did not complain — not because they were afraid — because some of them hoped, by yielding to the racketeers of the industry, that they would gain an economic or financial advantage over their competitors. I condemn every act of the defendant Buchalter’s past life. $1$ if: * * ifc

So, gentlemen, do you get my point — that Buchalter, who was being looked for by Dewey as king of the flour racket and king of the crime racket — he was looked for by the Government — he had so many charges hurled against him that everybody in this universe was searching for him, that he would worry about a possible misdemeanor? I say, ' Possible misdemeanor ’ at the hands of Rosen. What proof is there in this case by anyone that Rosen was roaming the streets of Brownsville threatening to go to Dewey? What could he tell Dewey? Nothing. Because, in telling Dewey that four years ago Buchalter drove him out of business, I take it he would also have to tell Dewey the good traits of Buchalter — that he got him a job — that he tried to get him another job — that he effectuated transfers and that he got him $100 and $125 a week. What was there that Buchalter had to fear at the hands of Rosen with thousands of complaints running to Dewey in extortion totaling a half a million dollars? Would he worry about Rosen, an ordinary poor truck driver? ”

At least one of the witnesses called by Buchalter corroborated in important details the testimony of Rubin, the principal prosecution witness (see post).

The defendant Buchalter also called witnesses for the purpose of showing that conversations testified to by some of the witnesses for the prosecution could not have been held, with the accompanying anger and excitement to which testimony was given, because the office in which they were held was small and because others were present therein or in' adjoining offices at the times mentioned who would have heard the conversations if they had occurred. Such were the defenses. No time limit was placed by the court upon counsel for the defendants for their summations and the presentation of those defenses.

Facts

One Max Rubin became an executive board member and one of the finance committee of Local No. 4 of the Cutters Union of the Amalgamated Clothing Workers of America (hereinafter called Amalgamated). Murray Weinstein was business agent and later manager of the local and executive board member of Amalgamated. As an official of the Amalgamated, Rubin came to know the defendant Buchalter and was with him almost daily. He also worked for Buchalter in connection with Local 138 of the Flour Truckmen’s Union and the Greater New York Tailors Expressmen’s Association. Later Rubin became business agent of Local 240 of the Clothing Drivers and Helpers Union, which was also affiliated with Amalgamated. In 1931 a dispute arose between two groups in Local No. 4 of Amalgamated. Buchalter supported one group, which gained control. Rubin arranged a meeting between the leader of the opposing group and Buchalter, and certain officials were given a year’s pay and withdrew from the union. Rubin, however, was continued by Buchalter as business agent of Local 240. Rubin was present at the meeting, at which it was arranged by a general organizer for Amalgamated, that one Danny Fields and Paul Berger (the “ finger man ” in the Rosen murder) should be the, intermediaries between the Amalgamated and Buchalter.

In 1932 Buchalter told Rubin that the union wished a stoppage on a specific date of all the trucks which carted clothing in and out of New Yorl city. Rubin told Buchalter that he believed he could stop all the trucks except those of three concerns: Garfield Express Co., Branch Storage and New York and New Jersey Transportation Company (the company of Rosen), (hereafter called N. Y. and N. J. Co.), which handled both union and non-union work. The Garfield Express, hereinafter called Garfield, owned by Louis Cooper, was located at Passaic, New Jersey, was non-union, and operated in competition with N. Y. and N. J. Co. in Passaic. N. Y. and N. J. Co. did business in New York, New Jersey and had a little business in Pennsylvania. Buchalter said that the Pennsylvania business had to be abandoned. Rubin visited the N. Y. and N. J. Co. officers and then returned and advised Buchalter that when he told Rosen that he would have to give up the Pennsylvania business Rosen said that that was the only thing he had in the business; that he had no money investments but that he had brought in the Pennsylvania business; that Rosen’s two associates also objected.

Buchalter told Rubin he wished to see Rosen and they met in the office of one Weiner, a former business associate of Buchalter. Rubin, Danny Fields and one Gurrah were present. Rosen told Buchalter that the Pennsylvania business was the only thing he had in the N. Y. an3 N. J. Co., and that if that were lost that he would lose everything. Buchalter then said he wished to see Rosen’s books. In response to a telephone message, they were brought by Rosen’s daughter, Sylvia, who was a witness upon the trial. Buchalter and Gurrah then went over the books and told Rosen what business he could not take. Rosen said he would be ruined. Rubin told him “ not to hit his head against a stone wall.” Buchalter then promised that they would do something for him and Rosen left.

As to Louis Cooper, of Garfield, Rubin testified that when Buchalter ordered him to stop his trucks, Cooper refused, saying that he had been double-crossed by the Amalgamated once and did not intend to be double-crossed again, Buchalter said “ you have nothing to do about worrying now, I am the Amalgamated, they will not double-cross you this time; ” that then Cooper agreed to stop if Buchalter would become his partner in Garfield to which the latter agreed.

The stoppage occurred and Rosen was forced out of N. Y. and N. J. Co. The Garfield Express Co. profited materially as a result. Later Rubin had a talk with Rosen in which the latter complained that everyone else had returned to work after the stoppage but that he was “ on the street.” When this was reported to Buchalter he asked what could be done and Rubin suggested that Rosen had once worked for Louis Cooper as a foreman and they might get him back there. That Buchalter arranged. About eight months to a year later Cooper discharged Rosen and refused requests both of Rubin and Buchalter to take him back. Rosen was then out of work for sixteen months during which period he complained to Rubin that he was a married man with a family and that they had nothing to eat.

After the appointment of Mr. Dewey as Special Prosecutor, Rubin had a talk with Rosen. Rubin then told Buchalter that they had a desperate man on their hands; that they had to get him a job; that he was doing much talking and that they were likely to get into a lot of trouble but that Rosen was willing to work for anything. Buchalter then arranged to obtain another job for him.

In the spring of 1936 Rosen opened a candy store on Sutter avenue. In June of 1936 Buchalter told Rubin that Rosen was going around Brownsville (in which Sutter avenue is located) “ shooting off his mouth that he is going down to Dewey’s office.” Rubin told Buchalter that he would get the members of Local 240 to patronize Rosen’s candy store. Buchalter said he did not care what he did so long as Rosen kept quiet. Rubin called a meeting of the executive board and arranged for the spending of money in Rosen’s store.

In July of 1936 Buchalter again told Rubin that Rosen was threatening, in Brownsville, that he was going to Mr. Dewey’s office and was going to testify about Buchalter. Rubin told Buchalter that there was nothing to worry about; that Rosen must be up against it. Thereafter, Sylvia Rosen Greenspan asked Rubin to visit her father. Rubin told Buchalter that he thought it was a good opportunity to straighten Rosen out; Buchalter told him to take two hundred dollars to Rosen and to tell him to stay out of town until he was told to return. Rubin gave Rosen the two hundred dollars and the latter said he would go to his son’s place at Reading, Pennsylvania.

The next time Buchalter spoke to Rubin about Rosen was on Friday, September 11,1936. Buchalter complained that Rosen had stayed at Reading, Pennsylvania, only for a few days and had double-crossed them. He said that Rosen was going around Brownsville threatening to go down to Mr. Dewey. Buchalter said: “ Well he is not going down to Dewey or any other place. He and nobody else are going down any place or do any more talking or any talking at all.” Rubin begged Buchalter not to be rash, to remember that he (Rubin) had visited Rosen’s store in July and to permit him to handle it, saying that he would go over to see Murray Weinstein. Buchalter said he did not care where Rubin went but to straighten Rosen out. Rubin rushed over to Weinstein and asked him to do something about Rosen but Weinstein said he could not do anything. Rubin returned and told that to Buchalter. Buchalter then directed Rubin to get Paul Berger and send him to him right away. Rubin found Berger and told him that Buchalter wanted him. Rubin then left to attend a ball game of the union at Vineland, New Jersey, and stayed at Atlantic City until Sunday noon.

Within forty-eight hours after Buchalter sent for Berger, Rosen was murdered.

Rubin read about the murder on the Monday morning after its commission. He talked with Buchalter about it, pointing out that he had visited Rosen in July and was therefore worried. Buchalter reassured him telling him that he had nothing to worry about so far as Brooklyn was concerned since Brooklyn was all right. In September, Rubin called Buchalter’s attention to an article in a New York newspaper, stressing the fact that it did everything but mention Rubin’s name and that in effect it made him a principal in the murder. Again Buchalter told him that he had nothing to worry about because the police were looking for Farvel Cohen (the defendant Philip Cohen, named in the indictment), Shimmy Salles and the defendant Weiss and that, when he was ready, he would send in the first two mentioned for identification purposes, but would not send in Weiss.

In early October, Buchalter told Rubin that an Assistant District Attorney named McCarthy “ was going around saying that he is going'to make one of the best pinches he has ever made; he is going to collar Lepke and Gurrah for the Rosen murder.” He told Rubin to leave town as things were “ very hot in Brooklyn;” to go to Glens Falls and to stay with Danny Fields who was hiding there; to take Paul Berger around and to introduce him to the business concerns from whom he was collecting. Rubin returned after a week and saw Buchalter at a hotel in Manhattan. Buchalter told Rubin that he would have to go away again, but in the meantime to stay out of sight of everyone in the clothing industry; that Brooklyn was not yet straightened out and that the Dewey investigation was closing in on everyone. Shortly thereafter Buchalter told Rubin to go to Salt Lake city. Rubin then consulted the lawyer for Local Union 240, Mr. Edward C. Maguire, and thereafter told Buchalter that Mr. Maguire wished to see him.

Rubin and Buchalter visted the offices of Mr. Maguire who was the attorney for the International Brotherhood of Teamsters. Mr. Maguire told them that it was unwise for any man to become a fugitive while an investigation was pending and that it would be ridiculous for a married man with a child to go off as a fugitive indefinitely; that Rubin was a representative of a union and that no union would stand for its representative being off in some unknown place and that the membership would oust him. Mr. Maguire testified that Buchalter interrupted during the early part of the talk and said “ If witnesses are not available, investigations collapse.” At the conclusion of the talk Buchalter said “ I will see about it ” and he and Rubin departed.

After they left Mr. Maguire’s office, Buchalter told Rubin that he had not wished to say it in the office but the case in Brooklyn would be thrown out; that Assistant District Attorney McCarthy would not handle it' any more and that another Assistant District Attorney would be put on it and then pushed on to something else in another building and that the case would die. Rubin then agreed to go to Salt Lake city. He left on October thirtieth and stayed there at the Carlton Hotel. During the month while he was there he received four fifty-dollar money orders through Western Union. He then returned to New York city and told Buchalter that he was too lonesome to stay longer; Buchalter told him he should not have returned as Brooklyn was not straightened out and investigations were getting very serious. Rubin stayed in New York until early in December when he was told by Buchalter to go to New Orleans and that he would send him money there. Rubin went to New Orleans but returned in a week without telling Buchalter. Then he telephoned Paul Berger and later received a visit from him. Berger told the witness that Buchalter wished to see him, waited while he dressed and then drove him to a place where Buchalter was waiting under an awning. Rubin told Buchalter that he could not stay in New Orleans. Buchalter then asked Rubin how old he was and, being told, said, “ It was a ripe age.” He was then told to go to Philadelphia to meet one Zenreith, alias Bartfield. The latter and Rubin took an automobile trip which lasted seven weeks during each of which the witness received fifty dollars in cash from New York.

Rubin next saw Buchalter in Washington and told him he was anxious to get back to New York. Buchalter told him he could not come back. After further conversation Buchalter told the witness to go to a Brooklyn hotel where Rubin registered under an assumed name. He was paid fifty dollars a week by Berger during that period. He then took an apartment in Brooklyn. He stayed in that apartment until August. He again talked with Mr. Maguire and then went down to the office of Mr. Dewey at 120 Broadway where he talked with Mr. Hogan (now District Attorney of New York county) and Mr. Ten Eyck, two of Mr. Dewey's assistants. That interview was arranged by Mr. Maguire. Following the interview he went back to work as .business agent of Local 240, By that time Buchalter had fled from the State.

Toward the end of September, 1937, Rubin testified before a grand jury in New York county in the Dewey investigation. On October first, four days later, as he was walking toward his home he was shot through the head.

On December 16,1937, Rubin was examined by Assistant District Attorney McCarthy in the presence of Assistant District Attorney (now District Attorney) Hogan of New York county. He then testified that he never told Rosen to leave town, never gave him any money to go away and that he knew nothing about the Rosen murder.

In amplification and extension of the testimony of this confidant, as well as intermediary and messenger, of Buchalter, of the testimony of those who heard the murder shots, who saw the car driven from the scene and who later saw it abandoned on Van Sinderen avenue by the four perpetrators of the deed and of the testimony of the lawyer for the labor group to whom Buchalter revealed his method of conduct in circumventing the law — “ when a witness is not around there cannot be a ease ”— there was the testimony of some of those actively concerned in the murder.

I shall take first that of Paul Berger for whom Buchalter sent when he finally lost patience both with Rubin and Rosen. Berger was employed by Local No. 4. He acted as a go-between for Buchalter and Weinstein. On the Friday before the murder Rubin gave him Buchalter’s message that the latter wished to see him. Berger went to No. 200 Fifth avenue to see Buchalter. Buchalter said “ Do you know that Joe Rosen.” Upon receiving an affirmative reply he said “ I want you to point him out.” He and Buchalter then took a cab to Suffolk and Grand streets. Buchalter walked along Suffolk to Broome street and told a man he met there to tell the defendant Mendy Weiss that he wished to see him. Weiss came and Buchalter talked to Weiss for five or ten minutes apart from Berger. Then Buchalter brought Weiss over and told Berger to point Rosen out to Weiss. Berger took Weiss to Brownsville in Brooklyn and, after Weiss had spoken to the defendant Capone, Berger pointed out Rosen to Weiss at the candy store. The murder occurred approximately thirty-six hours later.

Berger read of the murder in the newspaper and later talked with Buchalter about it. Buchalter told him that it would be advisable for Rubin to leave town until things cleared up in Brooklyn. Stii later, after Rubin’s return from New.Orleans, Rubin telephoned and Berger told Buchalter that Rubin was at Ms home in the Bronx. That was the mght that Rubin and Buchalter talked under the awning near Amsterdam avenue. Later Buchalter and Rubin came back to the automobile and he heard Rubin say: “ Listen, Lep, I got to be around somewheres where I can be near my wife and kid.” It was then arranged for Rubin to go downtown to stay at a hotel. Berger then drove Rubin home, waited until he obtained his clothes and then drove him downtown where Rubin checked in at a midtown hotel. Subsequently Berger saw Rubin while the latter was living in Brooklyn disguised by a moustache and glasses. He told Buchalter how funny Rubin looked and was directed to keep “ pepping him up.” In June, 1937, Buchalter told the witness that “ things were getting too hot, he will .have to lam,” and then fled.

' In the fall of 1937 the defendant Weiss talked with Berger about the fact that Rubin was “ squealing ” and asked Berger to point him out to one Sehlermer and to work with the latter. Berger then took Rubin to lunch in order that Sehlermer might see him. Sehlermer reported that he had trailed Rubin to a down-town building. Sehlermer also said “ that he has got to pick him up again tomorrow around the clothing market and when he goes in to the subway to go home he has got to get in touch with somebody in the Bronx.” Then Rubin was shot as he walked toward his home in the Bronx.

Six or seven months later Berger drove with defendant Weiss to Livonia avenue, Brooklyn. Weiss said that he wished Berger to point out Rubin to Magoon. “ This time the s.. of a b.... ain’t going to be so lucky.” The following morning Berger met Magoon and pointed out Rubin. There was delay in shooting Rubin a second time because he was under police protection and it was desired to shoot him without shooting the policeman. Magoon watched in the vicinity of Rubin’s house,, dressed as a laborer. A policeman questioned him and no further attack on Rubin was made.

In May, 1940, the defendant Weiss fled from the State because of his belief that one of Buchalter’s men named Tannenbaum (a witness at the trial) was talking. Weiss was arrested by federal narcotic agents in Kansas City, Mo., on April 6, 1941. He was living under the name of James W. Bell and had cards printed under that name purporting to indicate that he was vice-president of a mining company. He told the agents that he did not mind going back to New York except that he hated “ to sit between O’Dwyer and Dewey.” He also said he: “had intended to surrender himself at a later date when O’Dwyer would be out of office.” He had with him some diamonds and twenty-seven hundred odd dollars in cash. Berger was arrested in June of 1941 and charged with the murder of Rosen.

The witness Tannenbaum went to work for Buchalter in 1931 at thirty-five dollars a week. He took orders from Buchalter and was told by the latter to obey the directions of Gurrah and the defendant Weiss. Tannenbaum’s salary was increased from thirty-five dollars to one hundred and twenty-five dollars a week between 1931 and 1936. Two days before Rosen’s death Buchalter told Rubin in Tannenbaum’s presence that Rosen was one “ who will never go down to talk to Dewey about me.” He heard Rubin tell Buchalter that he would see Murray Weinstein to see if the matter could not be straightened out. Three or four days later Tannenbaum'was in Buchalter’s office when the defendant Weiss reported on the Rosen murder. Weiss related that everything had proceeded properly except for the fact that the defendant Harry Strauss to whom Weiss had given strict orders not to do any shooting, began shooting at Rosen as he lay on the floor after having been shot by Weiss. Buchalter said: “ All right, what’s the difference as long as everyone is clean and you got away all right? ” and patted Weiss on the back. Over coffee, shortly afterward, in response to a question Weiss explained that Rosen was “ some fellow used to be in the tracking business and that he was threatening to go to Dewey and talk about Lep.”

While Tannenbaum had never been convicted of a crime he admitted he had engaged in crimes such as robbery with a gun, sluggings, strike-breaking, throwing stink bombs and in six murders.

Seymour Magoon was a witness who testified that he was employed by Harry Strauss, Buggsy Goldstein (both executed, see People v. Goldstein, 285 N. Y. 376), the defendant Louis Capone and one Abe Reles (now dead). While he had received his first conviction in 1940, and that for vagrancy, he had stolen fifty or more automobiles and participated as the “ wheel-man ” in two murders, had shot several persons and committed several assaults. In the fall of 1938 the defendant Weiss in the presence of the defendant Capone, Strauss and Beles asked him to go to meet Paul Berger and another man on the following morning. Weiss said that Berger would point out Bubin and for him to follow Bubin, to find out his habits and to see if he had a police bodyguard with him. On the following day Berger pointed out Bubin and after following him and his body-guard during that day Magoon talked that evening to the defendants Strauss, Weiss, Capone and Beles. The defendant Weiss told him to put on old clothes and to watch Bubin’s house in the Bronx. On the following night the defendant Capone, said “ that Bubin is hurting Lep and we got to hit him in the head and get rid of him.” Magoon followed Bubin for the next three days during which on one occasion he was questioned by a police officer while watching Bubin’s house. Magoon reported that incident and the continued presence of Bubin’s body-guard. Weiss said “ then we will have to whack him and the cop.” That was in connection with the preparation for the second projected assault upon Bubin. Beference will later be made to the conversation between the witness and the defendant Capone about a “Friedman thing” (see post p. 215).

One Sholem Bernstein worked for the defendant Capone. On the Friday before the Bosen murder the witness was in his automobile talking with defendant Harry Strauss. The defendants Capone and Weiss and one Philip (Farvel) Cohen (a defendant also named in the indictment but as to whom there has been a severance) supra, approached. They called Strauss from the car. About three-quarters of an hour later they returned and Strauss said “ steal a car and get a drop ”— a “ drop ” is a garage in which to place a stolen car. Strauss also told Bernstein, after he had stolen the car and had arranged for the “ drop ” to meet him at four o’clock on the following afternoon. Without going into details, Bernstein rented a “ drop ” and with the aid of one Muggsy Cohen, stole a black two-door Chevrolet. On the following day at four o’clock he kept his appointment. The defendant, Capone, complained of the fact that a two-door instead of a four-door car had been stolen but nevertheless showed the witness the route to be followed from Bosen’s candy store, where, as Capone said, “ here is where somebody is going to be killed.” He showed the route through the various streets to Van Sinderen and Livonia avenues where the car was to be abandoned. Capone went over it seven or eight times. Then the defendant Capone told the witness to steal plates from a car that would not be missed and, after the plates had been put on, to return with the car at ten-thirty o’clock that night. When he returned that night Strauss brought a package with pistols in it and that was put in the compartment of the car. After watching Rosen’s store for a period of time it was decided that it would be safer to murder him in the morning when he opened his store. The witness, after putting the car away, went to the home of Farvel Cohen on Eastern parkway. He was told to get some sleep because he would have to be up at five in the morning. The defendant Weiss awakened him and told him to get the automobile and the guns. All then went to the hallway of an apartment house about á block from Sutter avenue. The witness, curiously enough, did not know that it was Rosen who was to be killed. He had never heard his name. After an hour’s wait the witness was instructed by the defendant Weiss to get the car and to stop it in front of Rosen’s store and to make certain that the motor was running. Before he drove over he saw the defendants Weiss, Strauss and Ferraco. (not apprehended) walk toward the store. Then Weiss and Strauss walked in. Ferraco stayed outside. He heard a number of shots and Weiss and Strauss came running out and with Ferraco entered the car. He followed the route as outlined to Van Sinderen avenue and Livonia avenue. He took the key out of the car and all four got out and walked over the bridge down into Junius street. There Capone had the witness Bernstein’s car and Philip (Farvel) Cohen had his own car. Weiss gave the witness his gun and told him to break it and throw it away. Capone told him to take Ferraco and drop him off. Then the defendants Capone, Weiss and Strauss drove away in Cohen’s car.

After District Attorney O’Dwyer took office and in February, 1940, this witness fled the State. He stayed for a few weeks at Miami Beach, came back to Brooklyn and then left for Los Angeles. Curiously, Bernstein came to Brooklyn from Miami in March, 1940, in order to see a lawyer. He went to the lawyer’s home. There he saw also another lawyer who had been the witness' “ regular ” lawyer for many years. Those two lawyers are two of the three who represented the defendant Capone upon this trial. Then in turn he went to San Francisco, Dallas, St. Louis and Chicago. He then returned to Brooklyn and surrendered himself to District Attorney O’Dwyer. After he talked with Mr. O’Dwyer he testified before the grand jury in Brooklyn. He also testified before a grand jury in Sullivan county against one Gangy Cohen and on the latter’s trial.

He was not cross-examined by counsel for Buchalter whose name he had not mentioned in his testimony. On cross-examination by counsel for the other defendants, he said that the Rosen murder was the only one in which he took part. He testified that he had helped dispose of a dead body by burial but had not been present when the deceased, one Yuran, had been killed. He testified that at the trial of Gangy Cohen in Sullivan county for the murder of one Walter Sage he had testified truthfully to what Gangy Cohen had told him in Los Angeles, Calif., but admitted that he had testified falsely as to some matters because he did not wish to give information to the “ mob ” all of whom had not as yet been arrested; that someone in the District Attorney’s office, he could not recall whether in Kings county or Sullivan comity, had told him not to tell everything for that reason. Apparently the matters about which he did not tell the truth were those involved in the Yuran murder case and the instant case. The indictment in the Yuran case had not been tried at the time Bernstein was cross-examined in the Gangy Cohen case.

It is of moment that the attorney for Gangy Cohen who cross-examined Bernstein in Sullivan county was the attorney for Philip (Farvel) Cohen, one of the defendants in this case, who has not yet been tried and whose name has been mentioned from time to time (supra). At the time of the cross-examination in Sullivan county there were many witnesses who were not under the protection of the District Attorney and many fugitives at large. Bernstein’s direct examination in Sullivan county in the Gangy Cohen ease as fco the conversation which he had had with the latter in California took from three to five minutes. His cross-examination by counsel for Gangy Cohen and Philip (Farvel) Cohen took three or four hours. These facts were elicited in the instant case by the District Attorney undoubtedly for the purpose of arguing to the jury that the cross-examination during the Gangy Cohen trial as to facts affecting the Yuran murder and the Rosen murder, which apparently involved members of the so-called “ mob,” was to learn about other cases for future use and that there was some justification for Bernstein’s concealment of facts. That of course could be no excuse. Be that as it may the facts involving Bernstein’s concealment in this regard were placed squarely before the jury. It was for them to weigh the question of whether Bernstein testified truthfully as to being the driver of the murder car in this case and as to the others whom he named. The trial court charged before taking up the facts: “ Let me say at the outset of this, please, scrutinize with suspicion and accept with caution and in a degree which accords with the character and extent of the impeachment, the testimony of each witness, and give due weight to all believable evidence put in by the other side which tends to contradict or discredit it. Then decide if you can, is the witness telling the truth now. Put your brains to work on that, because you will need them.” We are not the jury and we cannot say that this testimony was unbelievable as a matter of law.

There was another instance of falsification in Bernstein’s testimony to which I shall refer. He was kept in a hotel and he said that no communication was permitted among those who were kept there or with the outside world. It was shown that he wrote three or four letters threatening his former partner that unless Mrs. Bernstein received the sum of $200 he would inform against him. Bernstein then admitted that he had written the letters. They were not received in evidence after that admission. The court took the position that having admitted his untruthfulness, his credibility was impeached and the letters were irrelevant. The court said the witness had “ lied.” This ruling was correct but even if incorrect does not constitute reversible; error.

The defendant Buchalter called several witnesses to testify to the financia,] condition of the deceased, and of the N. Y. and N. J. Co. Among those witnesses was one Nat Sobler, an associate of Rosen and secretary of that company. Rosen had been vice-president. He testified that Rosen put no money into the company but brought in the Pennsylvania accounts; that when the “ stoppage ” occurred in 1932, to which reference has already been made, Max Rubin told him that he (Sobler) and one Bluestein were to have the New Jersey knee pants business and the New York accounts; that Rubin said that that was what the witness was going to get and that he would have to take it; Sobler said that when he heard that, he fainted; that Rubin told him “ That you are going to get and no more.” Sobler testified that the “ stoppage ” began about Monday and that Rosen quit N. Y. and N. J. Co. on Saturday; that on that day Rosen said he was getting a job with the Garfield Express at $100 to $125 a week; that Rosen said “Louis Buchalter, or Lepke, got in as a partner there and he told Louis Cooper to take me hack to work.”. It will be remembered that this was a witness called by Buchalter who, to the extent indicated corroborated Rubin, the chief witness for the prosecution.

Law

It is urged that the court committed error in its charge that the jury could reconcile the testimony of Rubin, Bernstein and Berger in connection with the conduct of Buchalter and the so-termed preparatory work on September eleventh. The point is this. The witness Rubin testified that on that-day he saw Buchalter at No. 200 Fifth avenue at about one o’clock in the afternoon. Buchalter then complained that Rosen was again talking. Rubin said that he would see Weinstein. That he did and later reported to Buchalter that Weinstein could do nothing. Rubin testified that that report was in the early part of the afternoon and that then Buchalter told him to send Berger to him. Rubin said he gave Berger the message at a time which may have been about two hours after his talk with Buchalter and thus well on in the afternoon. Berger testified that he saw Rubin at Union Square at about five p. m. and then walked uptown to Buchalter’s office; that then he and Buchalter went downtown where they met the defendant Weiss at about six or six-fifteen p. m. and Buchalter then told Berger to point out Rosen to Weiss. So much of Berger and Weiss. Now the defendants turn, in support of their argument, to the testimony of Bernstein. He testified that he was in his automobile at Sackman street and Livonia avenue with Strauss at a time between twelve-forty-five and one-fifteen p. m. when the defendants Weiss and Capone and Philip (Farvel) Cohen came up and called Strauss from the car; that they left him (Bernstein) seated in his car and returned three-quarters of an hour later. Strauss then told Bernstein, in the presence of the others, to “ steal a car and get a drop.” That would be about two p. m. The complaint of the defendants is that the court charged, after referring to the argument of one of the counsel that the testimony did not “ hitch,” as follows:

“ Gentlemen, I refer you to the record because I don’t want you to get twisted up on that. There is not a particle of evidence in the case as to when, if at all, Buchalter communicated in reference to the preparation work. The case is blank on that. There is no way of knowing. We do not know whether he did so, or, if he did, whether it was in the morning or the afternoon or the evening; but you have the testimony of Bernstein about when he received the alleged instructions to steal a car and hire a drop, which was earlier in the day. Taken in connection with the other facts, or alleged facts, concerning the alleged preparation work, and putting this and that together, you have a right to draw such inference as you see fit. Apparently, in the argument that was offered, counsel assumed that Buchalter waited until after the fingering before he gave the instruction; but, under the record, I charge you you are entitled to consider whether or not, at the time of the alleged excited statements by Buchalter during the day, that may be taken as evidence connecting him with either previous instructions or instructions immediately thereafter in connection with the hiring of the drop and the stealing of the car. I don’t say you have a right to draw an inference that he sent such an instruction over the telephone, but I do say you have a right, if you see fit, to reconcile the testimony by Rubin and by Bernstein and by Paul Berger on the various points of evidence they have testified to in connection with Buchalter and the preparation work on that day, and that the definite hook-up, if true, is the fingering plus the declaration by Buchalter. I feel that for accuracy I should refer to the record on this, so that you won’t be misled.”

The court then read questions and answers from the testimony and then said: “ Now, gentlemen, in going over the text, those are the only questions and answers that I can find covering that point in the direct. It is possible that I have overlooked something that is in the cross. I will be glad to instruct you on that by a quote if my attention is called to it, but, so far as the time element is concerned, you will note there is nothing there to indicate whether or not Buchalter had contacted in preparation, with the Brooklyn end, for the proposed murder before or after Rubin ran in on him and found him in that state and making those declarations, if that testimony be true — and please remember what the Court said to you about that — no speculation.”

Exception was taken to that portion of the charge upon the ground that there was an assumption implicit in the statement that there was an earlier communication between the defendant Buchalter, and somebody else about preparatory work. Further exception was taken because under it the jury had been asked to speculate. The court then said he would straighten the matter out, recalled the jury and charged as follows: “ My attention has also been called- to a possible confusion in my charge as to the possibility of a communication having been, even before that, given by Buchalter to somebody in Brooklyn to go ahead with the work of preparation. That would make it, of course, entirely consistent with the time table set up by Bernstein as to when he was given instructions to steal the car and get a drop. I want to correct any possible mischoice of language that might cause a misunderstanding. The case is blind as to whether or not Buchalter communicated. There is no way we know. You cannot presume that he did and you cannot presume that he did not, but I will say that the argument of one of the counsel for the defense in attacking the time tables as told by Bernstein as inconsistent with Rubin’s testimony and Berger’s testimony, is predicated upon an assumption on his part that there was no communication by Buchalter until after Rubin returned and gave word that Weinstein could not do anything. I charge you this — and I think this is accurate and will hold and will not be error — that there is no such presumption, and you are not justified in so presuming. If there is no such presumption, of course, then the argument attacking the time table fails. I am not afraid of that charge. There is an exception to all of the defendants on this modification.”

' That which the court said failed was the “ argument (of counsel) attacking the time-table.” In effect what the court said was that there was no presumption of fact either way. That was correct.

Both the charge and portion “ straightening it out ” were correct. It is elementary that “ in all cases of conflicting testimony the first step in the process of inquiry should be to ascertain whether the apparent inconsistencies it presents may not, without violence, be reconciled.” (2 Moore on Facts, § 1142, p. 1280.) Accordingly, “ Juries are constantly instructed to reconcile evidence, where they can do so, without the imputation of perjury of any witness.” (Savannah, F. & W. Ry. Co. v. Gray, 85 Ga. 825, 829, per Chief Justice Bleckley.) We have said that it is the duty of the jury “ to reconcile, if possible, conflicting statements as to material facts.” (Smith v. Lehigh Valley R. R. Co., 170 N. Y. 394, 400, 401.) Here the statements were reconcilable, and if reconciled, were not inconsistent with the testimony.

Surely, the court properly charged that the jury should endeavor to reconcile the testimony of Rubin, Berger and Bernstein. It may very well be that Buchalter, due to the anger in which Rubin found him at about one p. m. on September 11, 1936, had already sent word to Weiss and Capone that Rosen was to be silenced. On the other hand, it may be that Strauss and Capone and Weiss had their own reasons for telling Bernstein to steal a car and get a “ drop ” and that those reasons had nothing to do with the slaying of Rosen. Later on that day, when Berger and Weiss had their instructions from Buchalter as to the slaying of Rosen, the previous order to Bernstein to steal a car and get a “ drop ” may have been made to fit into the new plan. A jury could have so found. In that event or in the event that the jury found that Buchalter had set the machinery in motion before Berger was sent to him, or even before talking with Rubin, the testimony was reconcilable.

That Bernstein did not know that the automobile he was told to steal was to be used for a murder is made evident by his answers that if he had so known he would not have permitted Muggsy Cohen to take the radio out of the car. After the murder he searched out Cohen, obtained the radio, broke it into pieces and disposed of it. For the same reason he said he would not have taken the handle off the door of the car and had a key made for it. He said he thought the automobile was to be used in a “ schlamming ” (striking on the head with a lead pipe).

It is urged that it was error to permit Rubin on re-direct examination to give an affirmative answer to the question, “ Did you give untruthful answers to Mr. McCarthy due to fear of Lepke on your part because of the fact of having been shot, following your testimony before the Dewey Grand Jury? ”

Here was a witness who had made untruthful answers to an Assistant District Attorney’s questions. He had been shot through the head four days after his testimony before the grand jury, either because, as the defendant Weiss stated to Berger, “ We got some information that Max Rubin is squealing and he has got to be hit ” or as the defendant Capone told Magoon, “ Rubin is hurting Lep and we got to hit him in the head and get rid of him.” He had been one of the intermediaries between Buchalter and Rosen. There had been a scene in the court while the jury was absent in which Rubin had lost control of himself when asked for the reason for his untruthful answers to the Assistant District Attorney. The court felt that counsel was seeking to provoke an outbreak in order to move for a mistrial. It was to prevent a further outbreak that the court framed the leading question which the District Attorney was to ask. There was nothing objectionable in that question. It was necessary and proper for the District Attorney to elicit the reason in the witness’ mind for his conduct. The “ impeached witness may always endeavor to explain away the effect of the supposed inconsistency by relating whatever circumstances would naturally remove it.” (3 Wigmore on Evidence [3rd ed.], § 1044, p. 737.) As this court said in People v. Chapleau (121 N. Y. 266, 277): “ Here the witnesses in testifying to facts, of which upon the preliminary examination they had denied, knowledge, or which they had suppressed, may have been moved and deterred, as they swore they were, by motives of fright; and they appear to have been perfectly free from improper instigations, or motives to swear falsely. At any rate, it was for the jury to decide whether they were to be believed or not.” See also, People v. Weldon (111 N. Y. 569, 576).

The important factor was the reason which operated upon Rubin’s mind. That reason might be a good one or a poor one. It might have a foundation in fact or no foundation at all. The' fact that it was in Rubin’s mind was no proof that it had any foundation. All it was offered to prove was that that reason, good or bad, motivated the conduct of the witness. In this instance he had testified before the grand jury and had been promptly shot through the head. He believed that Rosen had been killed because he had not kept quiet. He believed that that killing had occurred pursuant to the orders of Buchalter. Buchalter had told him that the Rosen case was to be taken away from the Assistant District Attorney who was even then examining him and given to another and that the latter was to be given other work and sent to another building; that the Rosen case would die. It was Rubin’s state of mind that was being inquired into. That state of mind was no proof that Buchalter had anything to do with the shooting of Rubin. No one claimed it was proof of that fact. But that belief did enter into the mind of Rubin and that was the reason he said he did not tell the truth to Assistant District Attorney McCarthy. The question was a proper one.

It is said in the dissenting opinion: “ On request of counsel for Capone, the trial judge said to the jury: ‘ I will charge that unless they believe the testimony of Bernstein connecting Capone, that Capone must be acquitted.’ The gist of such connecting testimony was the ungarnished word of Bernstein that the getaway route over which he drove the murder car had been taught to him by Capone the day before the killing of Rosen.”

We think that there was more than that.

First as to the facts. Bernstein’s testimony in brief was as follows: On the Friday before the Rosen murder he was at Sackman street and Livonia avenue in his automobile talking with Harry Strauss. Along came Louis Capone, Mendy Weiss and Philip (Farvel) Cohen. Harry Strauss was in the car with him. They called Strauss out of the car. Mendy Weiss spoke to Strauss. Before Strauss stepped out he told the witness to wait around and not to go away. Capone had introduced him to Cohen and Weiss a year before. In about three-quarters of an hour they all came back and Strauss said “ Steal a car and get a drop.” Strauss asked if he could get one and when he answered “ Yes ” Strauss said “ After you get that, come over tomorrow afternoon at four o’clock on Sackman Street and Livonia Avenue, I want to see you.” He went away and rented a “ drop ” at Lincoln place and Ralph avenue at eight dollars per month.

About one o’clock the following morning he stole an automobile in the East Flatbush section with Muggsy Cohen, a car and radio thief. They stole a black, two-door Chevrolet. They drove it to the “ drop ” and Muggsy took the radio out. On Saturday morning he took the handle off the door and had a key made. He then had an appointment at four p. m. on Saturday at Sackman street and Livonia avenue with defendant Capone and Strauss which he kept. Capone asked if he had the automobile in the drop and then what kind of car and complained of the fact that it was a two-door car. Then Capone said “ Come on, I will show you the job you have to do.” Then Capone showed him the route; Capone said: “Now watch — this is going to be your job, what to do.” As they drove, he showed the witness the candy store (Rosen’s) and said: “Here is where somebody is going to be killed.” He showed the route through the various streets to Van Sinderen and Livonia avenues. Capone went over the route seven or eight times. Capone said “ This is the place where you drop the car off.” Then they went back to Sackman street and Livonia avenue. Strauss came over and Capone told him to steal plates — to make sure to take plates at a place where the car would not be missed and after the plates were on to bring the car at ten-thirty o’clock that night to Sackman street and Livonia avenue. He left his automobile with Capone after taking out a flashlight, a screwdriver, a pair of pliers and a pair of gloves. He broke into a garage and stole plates. He put the plates on the car he had stolen, broke up the old plates and disposed of them. He waited around and then drove the stolen car to Sackman street and Livonia avenue. He parked it a few doors away and it was inspected by Weiss, Strauss and Capone. Weiss started complaining: “ What the hell is the matter with you? Why did you get a two door car for? ” “ You know for a job like this you need a four door car.”

After Rosen had been shot Weiss and Strauss came running from the store and with Ferraco jumped into the waiting car of which Bernstein was the driver. He drove along the route to Van Sinderen and Livonia avenues. He took the key out of the car and all four stepped out and walked over the bridge down into Junius street. There Capone was waiting with another car, owned by Bernstein, and Cohen had his own car. Weiss gave the witness his gun and told him to break it and throw it away. Capone told him to take Ferraco and drop him off and Capone, Weiss and Strauss went away in Cohen’s car.

The portion of the charge containing the sentence quoted is as follows: Counsel for Capone: “ I ask your Honor to charge the jury that in so far as the defendant Capone is concerned, even if they were to believe the testimony of Solomon Bernstein, if they disbelieve the testimony of Seymour Magoon, they must acquit. The Court: I have already charged that and, as the jury knows, I have gone particularly into that point. It is all up to the testimony of Seymour Magoon. Do you believe it? If you do believe it, it is one thing; if you do not believe it, it is another. [Counsel for Capone]: May I have the converse of it in the next request? I ask your Honor to charge the jury that in so far as the defendant Capone is concerned, even if they were to believe the testimony of Seymour Magoon, if they disbelieve the testimony of Solomon Bernstein, in so far as it affects the defendant Capone, they must acquit. The Court: I so charge. That is obvious. Wait a minute. I am a little puzzled about this language as being sufficiently definite as a confession in case Bernstein is not believed. The language is that when that witness was talking to Capone, Capone replied, ‘ What are you worried about? I worked on the Rosen thing, which was right on Sutter Avenue, and I was not made.’ I think that is too indefinite. I will charge that unless they believe the testimony of Bernstein connecting Capone, that Capone must be acquitted. [Counsel for Capone]: There are just a few more. * * The charge was correct.

It is next urged as error requiring reversal that the court failed to analyze the evidence in the case so as to present to the jury fairly the conflicting claims of the People and the defendants but on the contrary expressly disavowed that duty. The case cited is People v. Montesanto (236 N. Y. 396). The last paragraph is no doubt the reason for the citation. We do not think it is justified by the paragraph in question which reads as follows: “ In our opinion, in view of these two matters, taken in connection with the failure of the court generally to analyze the evidence in the case so as to present to the jury fairly the conflicting claims of the People and the defendant, the latter was not accorded a fair trial.” (p. 407.) That is as far as we have ever gone. Surely it must depend on all the circumstances of the particular case.

We shall now quote the language of the charge upon which defendants must rely in support of this contention:

“ Questions of law are for the Court. It is not the purpose of the Court, in making any allusions to evidence, to do so for the purpose of refreshing recollection or particularizing in order to emphasize one point as against another. You heard the witnesses. You heard the evidence exhaustively discussed by counsel. The Court placed no time limitation upon the discussion, simply tried to preserve order and dignity, two qualities which are inherent in the administration of justice, and which it is the duty of the Judge to do.

“ It is the record of the evidence that counts, and that is left to your memory, to be refreshed in such particulars, if any, as you may desire, .by a re-reading of minutes on any particular point, should that be necessary. *******

“ These three defendants are tried together because that is provided for by a statute of this State. We cannot question the wisdom of that statute. It was passed by the Legislature and signed by the Governor. It is the law. But that does not lessen your responsibility in seeing that the evidence as against each is properly segregated and applied only as to him.

“ I shall have to later come back, and in a sort of way which I hope will be fair, attempt to point out certain parts, possibly the bulk, possibly all of the points of evidence in connection with the defendant or defendants to whom they apply. I will do that as a safeguard against your own confusion, but when I do it, remember it is your own recollection of the record that counts. Try as hard as I may to be fair in epitomizing for the purpose of segregation from, as I said, approximately a million words of record, I do not guarantee it to be true, because I cannot give assurance against the human frailty of making mistakes. * • * * * * * *

“ Now, gentlemen, I don’t like to review testimony in a long record. I don’t think it is humanly possible, with this enormous amount of text, for a judge to do this, no matter how fairly he tries to do so, without being accused of trying to color it.

“ Just as with an. anthology, any epitomization of record is terribly personal with the person who prepares the epitomization. I know it has to be done in some cases. I will do it if counsel for the defense request it. This has been a long trial. Witnesses have been put on in certain order. I don’t know how much of the record you remember and how much you don’t. A lot of it has been discussed in the summations from the viewpoint of counsel who argued. However, there are certain points of the evidence to which I feel under the necessity of calling your attention, first, because where more than one defendant is tried for a crime and the evidence is different as against the different defendants in its applicability, there should be some sort of an attempt at segregation by the Court as an aid to you otherwise you might apply evidence against one defendant as against the others, and that would be unfair. That is the purpose of this epitomization. Please do not gain any impression that it is warranted to be perfect. It is simply intended as a fair summary, and, I hope, a substantially accurate one.

“ Also, I express no opinion as to the believability of any of the witnesses on any of the points mentioned.

“ Also, this particular summary is not a general one; it is merely a segregation of evidence to keep you from misapplying it as against certain defendants.

“ The believability of any witness on any of the points mentioned is your job to decide, and I do not go into details of cross-examination because that likewise is your job. These are references purely. Cross-examination is almost impossible to correctly state in such a manner that two people can agree on its fairness because, while direct examination goes right to the point, cross-examination, being for the purpose of breaking down the direct, is largely hit or miss; it is blank cartridge shooting. Once in a while you find it shown that a bullet had hit, but whether there is a hit or not may be a matter of dispute.

“ Unless there be an outstanding point come out on cross-examination, the Court would only tend to confuse and mislead the jury if it attempted to discuss it.

“ Let me say at the outset of this, please scrutinize with suspicion and accept with caution and in a degree which accords with the character and extent of the impeachment, the testimony of each witness, and give due weight to all believable evidence put in by the other side which tends to contradict or discredit it. Then decide, if you can, is the witness telling the truth now. Put your brains to work on that because you will need them.

“ So far as the People’s case is concerned, the furthest you can go in figuring out motive on Buchalter’s part for wanting Rosen out of the way is that because of a business grudge carried by Rosen against Buchalter, having to do in some manner with the trucking company affairs in relation to the Pennsylvania business apparently, and the grudge relating particularly to Rosen’s severance with the business, and apparently blaming Buchalter for it, Buchalter feared that Rosen would reprise by giving information to Mr. Dewey which would get him, Buchalter, in trouble with the