New Britain Herald Newspaper, July 29, 1915, Page 5

peal f_rom New York, July 29.—Charles Becker must go to the chair. At 10:16 o’clock last night Supreme Court Justice John Ford - announced that he had denied Becker's motion for a new trial. Thére is no appeal from this de- cision. Governor Whitman holds Becker’s life in his hanas, but as Mr. Whitman has repeatediy said he will not commute the condemnéd, man’s sentence, the former police lieutenant will be executed at 5:45 o’clock to- 1a0rrow morning, 5 No New Evidence. Justice Ford finds that Becker's atatement and the affigayiis submitted along with this to the court do not constitute new. evidence, are without weight, and that, for the most part, this evidence is cumulative. Furthermore, Justice Ford holds, he is without power to grant a new trial. -In handing out his written opinion to newspapermen last night the justice said: . Power of Court Limited. - *“Phe power of a court in a criminal case of this kind is limited. When I came to look up the authorities I could not find that 1 'possessed the power to order a new trial. I suppose there are reasons of public policy why thig should be so. ‘We are all familiar with the de- lays in obtaining convictions. it trials could be grantea vn motions of this kind, supported by afidavits such ae these, there never would be .any executions, I suppose that is the Teason that we are restricted in our powers. . ‘"This is a very serious situation— that presented by this case. But I have hewed to the line, let the chips fall where they may. This proceeding belonged before the governor,. and that'is where it should have been taken.” * TFinished Opinion at 10 0o’Clock. By suggestion made' earlier in the day by Justice Ford, the rewspaper mien gathered in the reception room of ihe.chambers of the justics of the supreme court, on the thirteenth floor cf the-. igrant Bank building; 51| cxnmg " street, at 10.o'clock - last chael Ford/ brother of th ju.tloe And his secretary, came out &nd said: “His Honor is Just flnllhxn: the dic- iating of his opinion.” Ilichael Ford, giving no intimation oi what the decision was, left the ciréle of waiting reporters’ and re- ed to his office. Ten or so minutes m- rappurod POST TOASTIES? | A question that’s fully answered by. your first packag of the NEW POST TOASTIES. .. These Superior Corn Flakes are delightfully crisp to start with, and they have a body and firm- ness that stay cnsp, even after cream is added. NEW POST TOASTIES -have the real corn flavour. ;hepaqkaxe and they pleare ‘amazingly, but ‘these’ iender crisp bits of corn with milk or and- gtaowe you realize that the day of ordi- flabes" is past. hatoro me.; Decls:on. grouped around him, put “his right hand on the original copy of the opinion, which lay on the desk in front of which he was sitting and\, turning his eyes upon it steadily, he saiq: “I have denied e2'new trial.” His face was not set in an eéxpression of unusual firmness, but his voice had that quality. He did not follow that statement up with another for about half a minute. Then he looked up and said: newly discovered evidence, and must be disregarded. “Kaufman's two affidavits detail cer- tain conversations with Bridgie Web- ber, Rosenthal. Mrs. Rosenthal, Apel- baum and one Muttle, very little of which would he admissable under the rules of evidence “So of the afdavit of Edward J. Ginty, which purports to give the sub- stance of a conversation had with Rose, to the effect that it was not in- tended that Rcsenhtal should be killed that Rose had more than $5,000 in his possession. to be given to, Rosenthal for the purpose of getting him out of the way, and that Rose was ‘shocked and disappointed when he heard of Rosenthal's death The only theory on which this evidence could be con- sidered competent is that it might be introduced tc impeach or contradict Rose. But such proposed evidence is clearly of no weight upon this motion according to the decision cited above. Same With Murphy's AMdavit, ““The same may be said of the affi- “You'll find everything you want, I guess, in my written opinion.” “When did you reach a decision?” he was asked. “Last night,” he said, “so you can sce how utterly unfounded that Al- bany report was."” Decision on Birthday, . Gradually he relaxed. He mentioned that yesterday was his birthday; that he was fifty-three years old. He had planned weeks ago, he said to spend his birthday with his family at his country home near Peekskill. A few minutes later he departed for his apartment. “Such a motion could not be grant- éd -under the common law,” Justice Ford says, in opening . his opinion. “The power to grant it was conferred by statute in the laws of 1859, Chap- ter 339. That power now exists by virtue' of Sections 462-466 of the Code of Criminal Procedure. The particular provision of the statute un- der which this motion may be enter- tained is as follows.” Following the quotation of the sec- tion, the opinion continues: “Thus it is seen that the granting of new trials in criminal cases |is strictly limited by statute and it. not at all based ‘upon inherent right in the court as in civil cases. The rea- son for this @ifference seems to be that in the former class of cases the pardoning power is the safeguard re- lied upon to prevent injustice, while in the latter the courts themselves are the only recourse for the injured liti- gant.” Becker’s Affidavit Disregarded. ¢ Then is quoted what a deféndant must show to obtain a new trial, The opinion continues: “Does the ¢vidence set forth as newly discovered in the affidavits pre- sented on behalf of the defendant méet these requirements of the statute and of the court of appeals? That is the quéstion, and . the only question tAs to the M-Iid-nt 's'own affidavit, it 's;not contended that it sets forth Eat them dry direct ! davit of the convict Murphy. If what he swears to would be admissible at all, it would be for the purpose of im- peaching or contradicting Webber or other witnesses for the state. Murphy swears that in the Tombs he heard Rose, Vallon and Webber discussing a plan to “frame Becker.” “Jsaac M. Cohen’s affidavit tends to show merely that Rosenthal had a note of the late Senator Sullivan which the affaint sought vainly to have discouited. ' This is immaterial except upon thé theory that other in- competent and immaterial 'evidence propoged shold first be admitted as a* foundation. “Lewis Harns in his affidavit swears that he overhecard Webber say to the person known as Dollar John: “If you stiirg with Herman we'll take you the same as we are going to take him.” and that Itese ndmitted to him in ef- fect that the evidence connecting the .defendant with the killing of Rosen- thal had been fabricated. . This affi- davit is prolix and for the most part a rambling juiable of irrelevant hap- penings and conversations. Whatever relevant matters it contains would Le admissable only in contradiction or impeachment of Webber and Rose, and therefore unavailing here. Marshall ‘Affidavit Jmmaterial. “The aifidavit: of the Rev. James B. Curry becodiss immaterial in the view I take of the defendant’s statement as before Indicated. Iiither Curry's affi- davit is intended n crely to show that defendant's statement bad not been fabricated for the purposes of this mo- tion. “Harford 7. Marshall swears in his affidavit that, in a conversation be- tween him, as lawyver, and Webber as his client, the latter told him that Tlecker had noihing to dc with the killing of Rosenthal. Assuming that +hie statement was rot privileged, it flls under the condemnution of the Gecisions as merely tending to im- peach or contradict & w.itress for the people. “Mr. McIntyre and Mr. Manton make affidavitis to their not knowing at the time of the last trial about the matters detalled in he defendant's statement. The fatal fact is that the defendant himeelf did know about them at and hefore both of his trials. “Deputy Warden Johnson merely swears to what occurred when he took the aflant Murphy from prison to see Governor Whitman, and this is of no consequence in the view I take of the proposed new evidence offered on this motion, “As to Apalbnuml afidavit, which rélated to conversations bétween himi- self, the defendant.” Senator Sullivan and others, it contains nothing . of moment which was not known to the defendant before his last trial .Fur- ‘thermore, hé knew that Apelbaum knew about those conversations, and he was available as'a witnéss. The law requires reasonable diligence on thé part of the defendant in produc- ing evidence upon the trial, . Evidence Not Competent. ,“Not only is the proffered evidence open to the ohjection mentioned, but it is' for the most part cumulative and hence insufficicnt by the express lan< | guagée of the statute. (People -vs. Shéa, 16 Misc. 111.) “I am of opinion that when sub- jected to the test of the statute and the decisionsithere is Wot enough com: petent evidence . proffere have changed the result had i recelv- ed upon the trial, “Upon the argument and-in his memorande counsel for the defendant invokes the inherent power of tha court to grant a néw trial. I cannot find anywhere in the authorities even a suggestion that this court possessos any such power. On the contrary, as has been pointed out, the power is granted by statute and must be ex- ercised in strict compliancé with 1t (People vs. Court of General Sessions, 112 A. D, 424; afirmed, 185 N. Y., 504) In that case Mr. Justice Clarke sald: “* ‘In People vs. Glen (173 N, Y., 395,) Judge Werner, in discussing Section 313 of the Code of Criminal Procedure regulating motions to set aside indictments, referred to the fact that from time immemorial common law courts had quashed indictments, on motion, for defects in form and other irregularities, but added: “Such matters are now regulated by the provisions of the Code of Criminal Procedure, and however inconvenient, or even oppressive, they may appear to in specific cases, the courts must apply them as best they can for they embody the commands of the ‘law making power in matters wherein its flat is supreme and final.” We have, then, the authority of the Court of Appeals that prior to the statute there existed no power in the court to grant & new irial on the merits after con- viction of a felony for any reason, and that now the statute is impera- tive and controlling on all matters of criminal procedure.’ clal Term case of People vs. Benham (30 Wise., 466) as a precedent. But 1n that case the evidence offered upon the motion for a new trial was ac- tually newly discovered in the sense “Defendant’s counsel cites the Spe- | that what it tended to prove had never been mentioned upon the trial. Benham Case Different. . “iHere the facts sought to be shown, for the most part, had been litigated and the proffered evidence is merely cumlative. The resemblance between the Benham motion and this is that the defendant there as here had knowledge of facts sought to be prov- ed at time of final trial and was not permitted by his lawyers to testify concerning them. But it appears that there was a new evidence, aside from that of the defendant’s which warranted the granting of the motion. “At page 487 the court says that in view of the other important evi- dence which has been discovered since the trial, this application should not be denied for the reason that the testimony which the defendant can give was known to himself and his attorney at the time of the trial’ “That is true on this application also, but the trouble is that there is not ‘such important evidence,’ aside trom that proffered by the defendant personally, which would warrant the granting of the motion; and, as I have studied the authorities and examined the affidavits, the conviétion has grown upon mge that it could not be granted without disregarding the law and attempting to usurp the func- tions of another department of gov- ernment. “The motion is therefore denied.” Justice Ford, answering the ques- tion of what effect the decision in the Benham case had on him, replied: “The Benham case contained some features similar to this, but in the main points is dissimilar.” Ford Early To Work. Justice Ford reached his chambers on the thirteenth floor of thé Emi- grant Bank Building at 9 o'clock yesterday morning. He had left them for his home less than seven hours before. For an hour he turned his atten- tion again to the Becker case. Then, at 10 o'clock, he went to his court- room, in Part I, Special Term, to dis- pose nf a number of motions. ~ After that he went back to his chambers: Late yesterday afternoon, in re- sponse to a request made by the jus- tice on Tuesday evening, District At- torney Perkins sent to him a forty- eight-page brief on the case of R. C. Benham, of Batavia, a case re- ferred to orally and in briefs when Justice Ford heard argumeént on the Becker motion ofi Monday. ‘W.. Bourke Cockran, of Becker’s { what he was talking day afternoon, insisted that the cases | are not analogous, and he reviewed the Benham mater in great detall. | The District Attofney denied yes- | terday that he had anything to do with the creation of a report on Tues: day night that Becker would get a new trial. This report, according to Governor Whitman, came to him from a person in this city ‘“‘connected in a legal capacity with the case.” The District Attorney denied yes. terday that he had anything to do with the creation of a report on Tuesday night that Becker would get a new trial. This report, acocrd. ing, acoc rding to Gavernor Whitman, came to him from a person in this city “connected in a legal capacity with the case.”” Mr. Perkins said he knew nothing of the report until he read the Whit- men dispatches in yesterday's news- papers. Justice Ford has not cora- municated with the state executive on any phase of the case. Becker's lawyers could not figure why the highest official in the state should want to give currency to such news, even if it had been sent to Albany by a person who assumed to know about. And this particularly in view of the fact that Justice Ford at the time had not even seen the additional matter that he sbught to enlighten him. Many Pleas For Becker. The day brought no substantiation of the rumors that Justice Ford will ask Governor Whitman for a reprieve S0 that he can examine Becker and other witnesses. A number of letters and telegrams ‘were received by Justice Ford yes- terday, the great majority of them asking that Becker get a new trial, Only one writer pleaded that Becker's motion be denied. “Have a heart in the Becker case,” telegraphed a man from Bangor, Me., who signed himself Jack McAuliffe, A man of that name was once for- mer lightweight champion. D. Benjamin Bowie, of Cleveland, wired: “In your merciful goodness be just. Think of Whitman and his aspirations.” “I plead with you to grant Mr, Becker a new trial. No man ought to suffer on evidence from the source from which the Becker évidence came. Personally, I believe he is not guilty.” That was received from Dr. William George Butler, of the Pennsylvania State Normal school, at Williamsport. That Rose, in his interview with newspaper men last Thursday night, said he would be “suffering the tor- counsel; contends that the cases are analognus. Benham was convicted of murdering his wife. The Court of Appeals affirmed conviction. A motion for a new trial was made be- fore Justice Hooker, in the Supreme Court, and he granted it on the ground that evidence Benham had concealed from his attorneys during the trial and when the appeal was made would probably have changed the verdict. Benham was acquitted on a new trial in 1900. Mr. Perkins, in his brief of yester- THE GURRAN DRY GOODS CO. 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Mrs. Becker had hoped to be able to bring favorable news to her husband by 8 o’clock last night. When she learned that nothing had developed she went to Sing Snig. No Error, Says Perkins. District Attorney Charles A. Perkins was informed of the decision by tele- phone. “I am very glad,” he said, “that Jus- tice Ford took so much . time and lookad into the case so thoroughly. I m quite confident that there was rio merlt in the affidavits. I am sure no mistake is being made in carrying out the aemenca imposed upon Becker.” '‘Good God!” Cries Johnston, John B. Johnston, oné of Becker’s attorneys, waited beside theé switch- board in his office, 31 Nassau street, for Justice Ford’s décision. When a reporter informed him of it, Mr. Johnston exclaimed: ““Good God! Here's an absolutely in- nocent man, and he doesn’t evén get a new trial!” Mr. Johnston relayed the news to his associates, W. Bourke Cockran and Martin T. Manton. The excitement in a number of law offices and homes of lawyers imme- diately béfore and after Justice Ford announced his decision was quite as intense as when a jury in a capital case reports. it was a case of hearing whether Becker had been found guilty or declaréed innocent. For that was really what it\amounted to, in the opinion of Becker's lawyers. They have contended for several days that it Becker had been given a new trial the additional evidence in his béhalf would have effected his acquittal. “THE GHOST BREAKER” SCORES AT POLTI'S The superstition of the Spanish peo- ple might be said to be the real basis of the unusual play, ‘‘The Ghost Breaker,” in which the Poll Players are appearing this week. The castle of a'Spanish princess is supposed to be haunted by ghosts and the manner in which a dashing young American braves the storm and settles the ques- tion, after being warned that his life is in danger, furnishes the thread of the story. No play in which the Poli Players have appeared this season has been s0 replete with farcial thrills as “The Ghost Breaker” and the large audiences are daily manifesting their approval of the play. Dudley Ayres is appearing in the Warner role and is cementing his popularity with the Poli patrons. Mr. Ayres is admirably equipped to present such a part as that of the daring young American who féars no danger and who is will- ing to go anywhere that he thinks the princess might want him to go. Poli patrons are agreed that Mr. Ayres is a capable, talented actor. Miss Skir- vin, in the role of the Spanish prin- cess, is-also well cast for it is one of those characters that fits the popular leading lady of the players exceliently. Sunday evening there will be a sa- cred benefit concert at Poli's for ‘wHith ‘the management donates some exceptional motion picture features WE GIVE ROYAL SPECIAL CUT PRICES FOR GOLD DU —See Coupo Ccou TRACTS and A&P BAKING PO FROM MONDAY, JULY 26t IONA COFFEE The Best 25¢ Coffes in the UNEEDA BISCUITS | | | pkg 1 Clothes Pins . .100 for 12¢ Argo Starch . ..pkg 4c Fly Paper, 3 doublc sheets 5S¢ bottle A&P Ammonia .. 10c can Sultana Spice ..... 10e can Ol Dutch Cleanser 10¢ pkgs Noodles B5c each or 1 pkg. 10e cakes Grandma’s Ironing < ooi. . ench Be \hhfle Vinogar 10¢ pkg Ice Cream or Jelly Powder ..... Free Delivery Tel. 135 Next week the players will be seen In the dramatization of “The &hepherd of the K Hills,” a play based on the book of the same title which proved such a popular noveh it will be mounted in a manner that will prove rovel tn stock patrons and che plays ers may be relied upom to give it a faultless preseatation. REMINGTON G0. 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Furthef deflect) of the strikers was fi ter & Mackenzie pla tract work for h. R Five men returned ets were withdra Manufacturing terday. The im, that there was ng plckete, Buriness Agent night that con the er today with plants relative to | take charge of | turther in this ment of Mr, KQI, other fields, Chairman R department and went on a tour of ville yesterday aft c | FORD REO TOU Chevrolet E CORBIN COHEN 307 CHUFCH ST, fln 2 heavy breathing, and lack of m shown ' It may be f Do