People v. Walter Bennett, Appeal: Testimony of Norman J. Fitzsimmons

NORMAN J. FITZSIMMONS, a witness called on behalf of the People, being duly sworn, testified as follows:

Direct-examination by Mr. Ely:

Officer Norman J. Fitzsimmons: I am an officer connected with the Municipal Police Force of the City of New York, and was so connected on the 21st day of February, 1903, attached to the Fourth Inspection District. The Inspector of the Fourth Inspection District, on the 21st of February, 1903, was Inspector Walsh. On the evening of the 21st of February, 1903, I visited the premises 1730 Broadway, in the County of New York, at 1730 Broadway, known as the Ariston Baths. I had been there before, on February 14 and 16. On the 21st of February I went there alone. I got there about 9:30 P.M. When I got there I paid a dollar, and was assigned to a room and undressed, and took a bath. I saw persons in those Turkish baths, in this Ariston establishment that I knew. I saw Officers Phelan, Hibbard, McCutcheon, Abbott, Connolly and Ward. I saw this defendant there. I had seen this defendant before the night of the 21st of February, 1903. On the night of February 14th. I saw him on the night of the 14th of February, 1903, in the Ariston Baths, 1730 Broadway, New York County. I heard a conversation that he had, on the night of the 21st of February, 1903, in the Ariston baths; Officer Phelan was with me. He said to Officer Phelan, "Come to my room with me," and Officer Phelan says, "What for?" And he says, "To have a good time." I said to him, then, "May I go with you?" And he said, "No; I like a fat boy." So Officer Phelan said, "Well, I won't go with you now. I will meet you there at half past two." The defendant at the time that I state that he had this conversation with Phelan was naked except for a sheet drawn around his body. I was naked except for a sheet. Phelan was naked except for a sheet. In the bath place on this occasion before the conversation that I have just referred to, I seen him before; I observed him, yes. Oh, I didn't see him doing any more than walking around through the bath. He had a sheet so arranged upon his person that there was a train to it. That's all I seen about him.

The Court: Did the sheet trail upon the floor?

Fitzsimmons: Yes, sir.

The Court: You have been to those Ariston baths upon three occasions, you say?

Fitzsimmons: Yes, sir. This paper, marked People's Exhibit 1 for identification, shown me, is a diagram of those premises. I made it. It is a correct representation of the rooms that constitute what is known as the Ariston Baths.

Mr. Ely: Now, if your Honor please. I offer that in evidence.

Mr. Greenthal: I object to it.

The Court: What is this, Officer? Is it on a reduced scale?

Fitzsimmons: Yes, sir; on a reduced scale.

The Court: Merely showing the location of the room?

Fitzsimmons: Yes, sir; of the different rooms; from memory.

The Court: Do you swear now that this is a correct drawing?

Fitzsimmons: From memory.

The Court: Now, I ask you do you swear that that drawing shows correctly the location of the rooms as you observed them on that night and found them?

Fitzsimmons: Yes, sir.

The Court: I will admit the paper

Mr. Greenthal: I object, if your Honor please. May I ask the witness one or two questions before your Honor admits that?

The Court: Yes, I will allow you to do so.

Mr. Greenthal: Have you all the doors and windows described on that plan?

Fitzsimmons: No, sir; it is just an outline.

Mr. Ely: It is simply given, sir, for the purpose of showing the location of the rooms in the bath, and the doors and windows are not essential for that purpose.

The Court: As to the interior?

Mr. Ely: Yes, sir; that's all.

The Court: I will allow the paper in evidence.

Mr. Greenthal: I will taken an exception.

The Court: Simply to enable the jury to form a correct understanding of the rooms and the location of the rooms, and their location as to each other.

Mr. Ely: Relative location?

The Court: Yes.

Mr. Greenthal: And we are entitled, your Honor, then to the doors and windows, the doors between the rooms.

The Court: I do not think that the windows come into consideration at all here.

Mr. Greenthal: Well, then, the doors. We except.

(The paper is admitted in evidence and marked People's Exhibit 1).

He is questioned by Mr. Ely.

Fitzsimmons: Subsequent to the conversation that took place between Phelan and this defendant, I did see the defendant again. I saw the defendant in the northwest room of the rooms. That northwest room of the Ariston Baths establishment is a dressing room, with cooling cots in the centre of it.

He is questioned by The Court.

Fitzsimmons: Yes, sir, cooling cots or couches, in the centre of it. They are wicker cots, for the bathers to rest upon and cool off after taking their warm bath, that is what I mean.

He is questioned by Mr. Ely.

Fitzsimmons: This defendant in this northwest room was laying on one of these couches. I was with Officer Phelan when I saw the defendant lying on one of these couches in this northwest cooling room of the Ariston Baths. I and Phelan were standing towards the southerly wall of that room.

Mr. Ely: Now, then, mark on that diagram, please, the point where you and Phelan were standing, and also mark the cot on the diagram of the room on which the defendant was lying when you and Phelan were there together and saw him?

Fitzsimmons: He was lying on the couch nearest the southerly wall (indicating). This one here (indicating).

Mr. Ely: Well, now, just mark it. You have marked two couches there. Put "D" for defendant?

Fitzsimmons: Yes, sir.

Mr. Ely: Well, now, was the defendant there alone, or was there somebody - or did you see somebody else with him when you first went in there?

Fitzsimmons: He was on a couch alone when we first went in the room.

Mr. Ely: And, subsequently, did anybody come up to the defendant?

Fitzsimmons: Yes, sir.

Mr. Ely: And do you know who it was?

Fitzsimmons: I have found out since.

Mr. Ely: And who was it?

Fitzsimmons: George Galbert.

In response to the District Attorney's call for George Galbert, a man appears at the bar.

He is questioned by Mr. Ely.

Fitzsimmons: I see a person that I described as George Galbert in Court. This is he (indicating Galbert).

Mr. Ely: Now what, if anything, did you see the defendant and Galbert do?

Fitzsimmons: I seen the defendant Galbert approach the couch that the defendant, Bennett, was lying on.

The Court: The man Galbert and not the defendant Galbert.

Fitzsimmons: Yes, sir; the man Galbert; and place his penis in the anus of the defendant Bennett.

The Court: You use the word "anus." Can you use a term that may be readily understood by the jury?

Fitzsimmons: Well, I seen him -

The Court: Can you use a word instead of "anus" that will described what you say you saw in a way that may be more readily understood by the jurors?

Fitzsimmons: I seen the defendant, Galbert, place his penis in the opening between the buttocks of the defendant.

The Court: Which is commonly called the rectum?

Fitzsimmons: Yes, sir; commonly called the rectum.

The Court: Is that it, Officer?

Fitzsimmons: Yes, sir.

The Court: The rectum?

Fitzsimmons: Yes, sir.

He is questioned by Mr. Ely:

Fitzsimmons: The penis of Galbert was in a state of erection at the time. When he put it in the rectum of the defendant he made motions, that is backward and forward motions. Then they were on the couch for a very short time. They had their arms about one another. When the man Galbert took the penis of the defendant, Bennett, in his mouth and worked his head backward and forward. I noticed the penis of the defendant, Bennett, when Galbert took it in his mouth; it was in a state of erection. I noticed the penis of Bennett, when Galbert withdrew his head from it, it was in a state of erection. And then they laid back on the bed in a state of collapse, both the defendant Galbert and the defendant Bennett. I remained in that room for a short time afterwards.

Mr. Ely: Well, now, how was that room lighted, Officer?

Fitzsimmons: There was no light in the room, but there was a large doorway, with chenille curtains on it, and these curtains were drawn aside and the room adjoining this room was brilliantly lighted, and there was sufficient light coming through that doorway to enable one to see everything that was going on.

He is questioned by Mr. Ely:

Fitzsimmons: I recognize this defendant as being the person described. I am positive. After I had seen him performing these acts with Galbert, I next saw him in the parlor of the premises where all the inmates of the bath had been corralled; and, as they were lined up for identification, as I identified him, Officer Phelan said "I also want that man." Officer McCutcheon took the defendant to his dressing room. This occurred about 1:45. The transactions that I have described took place in this northwesterly cooling room, between this defendant and Galbert about 1:30 A.M., on the morning of February 22d.

The Court: Were there any other persons in the room, at the times that the witness has described?

Fitzsimmons: Oh, yes. There were ten or more persons, patrons of the bath.

The Court: Bathers?

Fitzsimmons: Yes, sir, bathers.

Mr. Ely: Now, under whose instructions did you go to the baths on that night, if anybody?

Fitzsimmons: Under the instructions of Inspector Walsh.

Mr. Ely: Of your superior officer?

Fitzsimmons: Yes, sir.

Cross-examination by Mr. Greenthal:

He is questioned by The Court.

Fitzsimmons: The man Galbert was standing at the southerly wall and walked over to the couch of the defendant, and took the legs and brought them around in a position - in a sort of square position of the legs. The defendant was lying upon his side, lying upon his side. That is before the man Galbert took hold of his legs. At the time of the act he was not laying full length on the couch. He was in a sort of position like that (illustrating).

Mr. Ely: Couched up?

Fitzsimmons: Yes, sir; as to his legs.

He is questioned by Mr. Greenthal.

Fitzsimmons: I arrived at the baths about 9:30 P. M. on the evening of February 21st, and when I arrived there, Phelan was there. I didn't see him immediately after going in. I seen him probably 15 or 20 minutes afterwards. The first time I saw the defendant Bennett was about 11 o'clock on that evening. I did not look at my watch.

Mr. Greenthal: How did you fix the time?

Fitzsimmons: In my judgment. I had no means of fixing the time. I was naked. I was undressed at that time. The part of the building that Bennett was in at the time I met Officer Phelan and Bennett was in the parlor, adjoining the buffet. That is the place where this conversation was. I heard the conversation. The defendant asked Phelan to accompany him to his room and Phelan said "What for," and he said "To have a good time." I spoke up then and said "May I accompany you also?" And he said, "No. I like fat boys." And then Phelan said, "Well, I am with him (indicating me)." "I will meet you at half past two." That is all I heard. I walked away then by myself. Officer Phelan was probably with him a second or two, or a moment more. That is all that transpired as far as I know, yes. I was with him. Officer Phelan, for the rest of the evening, that is - I waited there until he came up to me. I was not facing him all the time while he was talking to Bennett. No, other things attracted my attention. I don't remember which way I was facing. I don't remember. I do not remember going to a room occupied by a man named Schnittel. I was a witness in the Schnittel case. I didn't testify in this case that I was in the Schnittel room.

He is questioned by Mr. Greenthal.

Fitzsimmons: Officer Phelan was not with me at all times up to the time that I went into Bennett's room. No, not right alongside me. We were through the baths, and we separated probably for a minute or two at a time. I went direct with Phelan, when he entered the Bennett room, the room where Bennett was, the northwesterly room. We followed one another into the room. I found in that room when I entered, the defendant and the man Galbert, and about ten or more people in the room. The other people were standing around; lying down; walking about. Some were walking. Galbert at that time was standing against the southerly wall.

Mr. Greenthal: How close to this couch?

Fitzsimmons: Oh, two feet.

Mr. Greenthal: Was Galbert doing anything at the time?

Fitzsimmons: Not as we entered. When I went into the room with Officer Phelan, I went right to the left of the room, to the left hand side of the room, as we entered. That is the southerly side of the building. Of the room, yes, sir; of the room. When I got in there I stood there.

Mr. Greenthal: Well, how close to the cot?

Fitzsimmons: Oh, a foot or more.

Mr. Greenthal: Were you standing between the cot and Galbert?

Fitzsimmons: When we entered?

Mr. Greenthal: Yes.

Fitzsimmons: Standing between the cot and Galbert? I don't understand you.

Mr. Greenthal: Well, one moment. You say that when you went in there you were standing one foot from the couch?

Fitzsimmons: Or more, I said.

Mr. Greenthal: Or more?

Fitzsimmons: Yes, sir.

Mr. Greenthal: Now, were you standing between the couch and Galbert?

Fitzsimmons: No; alongside of Galbert. To the right of Galbert. The cot was in front of Galbert. I am speaking of when we entered the room. So that the cot was directly in front of me. The cot was not up against the wall. I did not measure the couch.

Mr. Greenthal: Can you tell us how high that couch was, at this time?

Fitzsimmons: Oh, I should judge, two feet or two feet and a half. The couch I should judge was about the height of the seat of this chair, or probably higher.

He is questioned by Mr. Greenthal.

Fitzsimmons: I was undressed, at the time I entered that room, except for a sheet. And all the others in that bath were naked, except for a sheet. When I entered that room Bennett was facing me. I stood up against the wall, before Galbert approached Bennett, a short time. Well, four or five minutes, probably. Galbert did not speak to Bennett. He didn't say a word, no, sir, no conversation was passed at all. No conversation passed between them at all. And Galbert raised Bennett's leg, and I was standing there at that time with Officer Phelan, in full view of Bennett and Galbert. Galbert did not speak to me. Bennett did not speak to me, or to my brother officer. No conversation took place, no, sir, not at that time.

Mr. Greenthal: How high did Glabert raise Bennett's leg, if you know?

Fitzsimmons: I should judge eight or nine inches, or more.

Mr. Greenthal: Did Bennett move, while lying on that couch?

Fitzsimmons: Oh, shuffled a little.

Mr. Greenthal: Just a little?

Fitzsimmons: Yes, sir; just placed himself in comfort, I should imagine.

Mr. Ely: Well, what did you say?

Fitzsimmons: Shuffled himself, I should say, enough to place himself in comfort on the couch.

He is questioned by Mr. Greenthal.

Fitzsimmons: Bennett was facing the southerly wall. That room is about 18 feet in width. And there is compartments on each side of the room, both on the north and south side of the room. The room itself, just the room itself, is about 18 feet in width, and about 20 feet deep. About 18 by 20. And I say that there were about ten or fifteen other people in that place, at the time, counting the compartments, it is about 18 feet. I don't mean that the space between the compartments is 18 feet wide. This couch was about two feet or more from the southerly wall, that is from the compartments, the doors of the compartments. I was standing up against the southerly wall, against these compartments. I was standing up against the compartments. They are dressing rooms. And so there was about two feet of space between where I was standing and where the couch was, about that or more.

Mr. Greenthal: Well, about how much space was there?

Fitzsimmons: About a foot.

Mr. Greenthal: Well, when you say Galbert placed his penis in the mouth of this defendant, did you stoop down and look?

Fitzsimmons: Why, the light from the other room -

Mr. Greenthal: No, no. I am asking you that question.

Fitzsimmons: From where I was standing, I could. I was standing erect and Office Phelan was standing right alongside of me. He did not move, not that I remember. I wasn't paying particular attention to him. I wasn't watching Officer Phelan. I was watching the defendant.

He is questioned by Mr. Greenthal.

Fitzsimmons: I did not, at any time, leave Officer Phelan's side, while the act was being committed. The time consumed in going through this act was about two or three minutes. And, after the penis was withdrawn, I did look at it, closely. I didn't have to stoop over. It was in a state of collapse after he withdrew it from the anus of the defendant. It was not in an entire state of collapse, but it was limber. Before Galbert took the penis of this man in his mouth, they laid on the couch. They threw their arms about one another. That lasted a very short time, I can't judge the exact time, but a very short time, though. I could say two or three minutes, and probably more. Galbert was not facing me at the time, or was Bennett. Bennett had moved over to the next couch. Bennett moved away from the couch and moved on to the next one. They both worked together. Bennett faced me at that time, if I remember rightly, he did. I was in full view all the time. He could have seen me, because I was standing right there. Glabert lied down on one of those couches. Two connecting couches. Galbert did not lie down on the same couch with Bennett, the two couches were together, but they were separate couches. They continued to embrace a very short time. I saw Bennett have his arms around Galbert.

Mr. Greenthal: And did Galbert have his arms around Bennett?

Fitzsimmons: I think he did.

Mr. Greenthal: Don't you know whether he did or not?

Fitzsimmons: I think he did.

Mr. Greenthal: Is that the best answer that you can make?

Fitzsimmons: Yes, sir.

Mr. Greenthal: Now who was the first person to stir, after they had embraced?

Fitzsimmons: Why, Galbert, if I remember rightly.

Mr. Greenthal: Don't you know?

Fitzsimmons: I will say Galbert. Glabert on the couch was nearer to me. He wasn't facing me at the time. I say that I saw Galbert move on the couch. He only moved his person, and reache down to where the penis of the defendant was. He moved all the way down to reach him. Galbert was in a coiled position on the couch. The time consumed to do this particular act was a very short time; probably two or three minutes or more. I did not then speak to Galbert and Bennett, after that act was gone through, I never spoke to them since. I did not continue to remain up against the wall, no, sir; not particularly up against the wall. Right after that I went towards the door. i saw persons pass out at that time. At the time while I was there.

Mr. Greenthal: How many persons passed out?

Fitzsimmons: Oh, half a dozen. And some entered.

Mr. Greenthal: Going in and coming out?

Fitzsimmons: Going in and coming out, all the time. I did not arrest any person in that room. There was no person arrested in that room.

He is questioned by Mr. Greenthal.

Fitzsimmons: After this all took place, as I have described it, I left the room about two minutes or so after I should judge. If I remember rightly, Officer Phelan went out of the room first. Then I followed Officer Phelan, ten minutes after, about that time. Galbert left that room.

Mr. Greenthal: Before or after Phelan left?

Fitzsimmons: I couldn't say, sir.

Mr. Greenthal: Don't you know?

Fitzsimmons: I wasn't paying any particular attention. I had my eyes on these two people all the time that I was in that room. I went into that building for a specific purpose; for that very purpose, acting under instructions from my Inspector.

Mr. Greenthal: And now you want to say that you don't know whether Galbert left that room before Phelan or not?

Fitzsimmons: Well, I would say that they both left the room together, passed out.

Mr. Greenthal: Now, can't you say whether Galbert or Phelan left the room together?

Fitzsimmons: They both left together.

Mr. Greenthal: Side by side?

Fitzsimmons: It is a doorway, eight or nine feet wide.

Mr. Greenthal: And were they side by side when they left?

Fitzsimmons: Yes, sir.

Mr. Greenthal: Are you positive of it?

Fitzsimmons: Yes; I will be positive of that. I saw Galbert after that in the room when the men were all corralled in the one room at the time they were placed under arrest. They were corralled in the room about 75 or 100. I say that I remained about ten minutes after my brother officer left the room with Galbert. About that time. I did not at any time speak to Bennett, after that. I never spoke to him in my life after that.

Mr. Greenthal: Now did you continue to stand against that wall?

Fitzsimmons: I crossed over to the southerly wall of that room, at one time. I did not speak to him at that time. I did at some time go to the rear of that room. I have been to the rear of that room, not at that particular time. The raid was made about a quarter of two, about that time. All the persons found in that building or in that part of the building where these baths were, were all placed in the large parlor. Some were dressed and some were undressed. There were from 75 to 100 people, about that. And then the people were taken out of this room, one by one in front of certain policemen, who had been sent in there. We officers were standing in a line, and, as these people passed out, we identified certain people, the ones that we wanted. I believe I was the first person that identified the defendant Bennett. Both officers identified him, and identified him at the same time. As to the first person that identified this man, Bennett, why I might say that Officer Phelan and I identified him at the same time. The first person that said, "I want that man," I believe was myself. Bennett was then in a sheet. I did not take hold of Bennett at that time.

Mr. Greenthal: Did Officer Phelan?

Fitzsimmons: Oh, just took him and put him into another room, directed him to go to another room. He went into another room close to the room that he came out of, eight or nine feet.

Mr. Greenthal: Do you know who identified Galbert?

Fitzsimmons: I believe I identified him first.

Mr. Greenthal: Eh?

Fitzsimmons: Oh, no. Galbert was identified in his room.

Mr. Greenthal: Wasn't Galbert in this parlor?

Fitzsimmons: No, sir.

Mr. Greenthal: He was not?

Fitzsimmons: No, sir

Mr. Greenthal: Now, after Bennett had gone into the adjoining room that you speak of, did you enter that room?

Fitzsimmons: No, sir; I never was in that room; not at that time.

Mr. Greenthal: Did you see Bennett from the time that you picked hi out, up to the time that you saw him in the police court; did you see him at all?

Fitzsimmons: Why, I seen him in the station-house. I saw him in the Fifty-fourth Street Police Court. I did not speak to him in the station-house. I found him among a lot of other prisoners; he was amongst the others that were identified; I saw him in the police court; I seen him in the prison. In the prison pen. Officers Hibbard, Phelan, McCutcheon and I believe Connolly and Ward were there, also with me at the time; I do not know an officer by the name of Anderson. I don't know any such officer. Just before arraigning these different prisoners before the City Magistrate, I did not go down stairs to the prison, to identify my prisoners. They were not brought upstairs to me. I am talking of the day of examination. The day before the examination. I was down in the pen, to bring the prisoner up.

Mr. Greenthal: You were down there, with Officer Phelan?

Fitzsimmons: To bring the prisoner up.

Mr. Greenthal: (Question repeated)

Fitzsimmons: I don't remember. I don't think so. I think I was alone. I did not at that time have a dispute with Officer Phelan, or any other officer, as to who was my prisoner. I did not have any difficulty in identifying the defendant and a person named Lawrence. I know a person by the name of Lawrence. He was in the pen at the time. I do not know who arrested Lawrence. I was in this northwesterly room with Bennett and Galbert, before the raid took place, about ten minutes or so. I was in the room, with Bennett alone, before the raid took place, five minutes, I should judge; a short time. After I left Bennett on the couch the raid took place in a very short time. Well, I should judge ten minutes, probably less or more.

The seventh Juror asks a question.

Fitzsimmons: I was there on February 14th, the Saturday night previous. I saw the defendant there that night. I didn't say that I had never seen him before. No, I haven't said that. I have stated in my testimony, on the District Attorney's examination, that I was there on the 14th, 16th and 21st, and that I had seen the defendant there on the 14th.

The Seventh Juror: What did he say to you and your brother officer, to have a good time? What do you mean by that? What does he mean by that?

The Court: Well, Mr. Juror, we are not allowed to let a witness tell what he thought or believed was the meaning of another person's words. We have simply to take the words, as they are uttered, and it is for you gentlemen of the jury to determine what the meaning was.

Mr. Greenthal: Mr. Fitzsimmons, you say that one room was lighted?

Fitzsimmons: Yes, sir, the adjoining room to this northwesterly room.

Mr. Greenthal: And this room in which the act was committed, there was no light at all?

Fitzsimmons: No, sir; absolutely none, from the chandelier in that room.

Mr. Greenthal: Would you say that it was dark?

Fitzsimmons: No, sir; I don't say it was dark. It was dark, except for the light that shone in from this other room.

Mr. Greenthal: And you say that the doorway was screened by portieres?

Fitzsimmons: Pulled aside.

Mr. Greenthal: How much space between the portieres?

Fitzsimmons: Six or seven feet. I should judge.

Mr. Greenthal: And how high?

Fitzsimmons: About ten.

Mr. Greenthal: And how high is the ceiling?

Fitzsimmons: About twelve.

Mr. Greenthal: So the portieres were not quite up to the ceiling.

Fitzsimmons: No, sir.

Mr. Greenthal: There was a wall between them?

Fitzsimmons: A sort of a transom.

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