People v. Walter Bennett, Appeal: Testimony of Thomas F. Phelan

People v. Walter Bennett, appeal

THOMAS F. PHELAN, a witness called on behalf of the People, being duly sworn, testified as follows:

Direct-examination by Mr. Ely:

Officer Phelan: My name is Thomas F. Phelan. I am a member of the Municipal Police Force of the City of New York. I was a member of the Police Force of the City of New York on the 21st day of February, 1903, attached to the Fourth Inspection District under Acting Inspector Walsh. It was Saturday night before Washington's Birthday; I went on the evening of the 21st of February, 1903, to the Ariston Baths, 1730 Broadway. I went there about nine o'clock. I went there alone. When I entered, I went in the office and paid a dollar and was assigned to a dressing room and took off all my clothes and placed a sheet about me, and went out and took a bath. That is a diagram of the baths, the Ariston Baths, situated at the north corner of 55th street and Broadway, in New York County, and the premises that I visited on the night of the 21st of February, 1903. From my personal knowledge I am able to state that is a correct representation of those premises, the Ariston Baths.

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

Mr. Greenthal: I object to it, if the Court please; we object to it on the ground that it is incorrect, and the witness has not proven himself an expert on the subject.

Mr. Ely: I will ask to have it marked only for identification now.

The Court: I will admit it for identification. (The paper is marked for identification, People's Exhibit 1).

Phelan: I didn't know anybody when I entered. I saw persons that I knew after I entered; six officers. Officers Fitzsimmons, Hibbard, Ward, Connelly, McCutcheon and Abbott. I saw Fitzsimmons and McCutcheon; well, I think it was about half-past nine. That was not at or about the time that I arrived. I was there first. I was the first one in the baths. I saw this defendant there, on that evening. I first noticed this defendant at half past ten. This defendant when I saw him, about half past ten, on the night of the 21st of February, 1903, at the Ariston Baths, in the County of New York, was walking about the place from room to room. He was naked, with the exception of a sheet drawn tightly around his hips; and he was trailing the sheet along three or four feet. Well, he was talking to different people there. I had a conversation with him later on, about eleven o'clock. When I had a conversation with this defendant, about 11 o'clock, Officer Fitzsimmons was with me. The defendant got hold of me, Bennett, that man there (indicating the defendant) and he placed his arm around my waist, and asked me if I would go to his room with him. I asked him what for, and he said he would give me a very pleasant time, if I would go to his room with him. I told him I couldn't go now; that I would go later on. At half-past two I made an appointment to go to his room with him. As to how the defendant was attired when he threw his arms around me and had the conversation that I have stated; well, he was naked with the exception of the sheet around his waist, about his hips. And I had a sheet thrown about my shoulders. After that I next saw him in the westerly room of the bath, the cooling room; that westerly cooling room of the bath is toward Broadway; it is the most westerly room of the bath. Well, it is along the north side, towards Broadway, the northwest corner. When I entered that room it was about 1:25. Officer Fitzsimmons was with me. I saw this defendant lying on a couch there.

Mr. Ely: Well, was he alone or was somebody with him?

Phelan: He was alone at that time.

Mr. Ely: And then what happened?

Phelan: Why, he was lying on the couch there, facing toward me. I was standing against the wall, in company with Officer Fitzsimmons.

Mr. Ely: Now, which wall were you standing against?

Phelan: The southerly wall of the room.

Mr. Ely: The southerly wall of the room?

Phelan: Yes, sir.

Mr. Ely: About how far from the entrance of the cooling room were you standing, this cooling room?

Phelan: I should judge about five or six feet.

Mr. Ely:. And you say Fitzsimmons was with you?

Phelan: He was.

Mr. Ely: And what happened when you were standing there?

Phelan: This defendant was lying on the couch and a man who I have since found out to be George Galbert -

Mr. Ely: Now wait a minute. Is that George Galbert (indicating a man at the bar)?

Phelan: That is the man, yes.

Mr. Ely: The man that now approaches the bar?

Phelan: Yes, sir.

(The District Attorney called for George Galbert, and a man approaches the bar, and the witness identifies him as George Galbert).

Mr. Ely: That is the man?

Phelan: Yes, sir.

Mr. Ely: The person that came into the cooling room where you were, with the defendant and Officer Fitzsimmons, on the morning of the 21st of February, 1903?

Phelan: Yes, sir.

Mr. Ely: Now what happened?

Phelan: The Galbert man approached the couch on which the defendant was lying and raised his legs, the defendant's legs; and turned him around so that his legs was toward the side of the couch. He dropped the sheet from his shoulders and he stood there in front of him, entirely naked. His penis was in a state of erection, and he raised Bennett's legs, the defendant, and inserted his penis in the anus of this defendant, Bennett. Then he moved back and forward for several moments; and then withdrew his penis; and it was in a state of collapse. He then laid down alongside of the defendant, Bennett. When he laid down beside Bennett they put their arms around one another and kissed one another several times. In a few moments then he - Galbert - placed his head over the penis of the defendant, Bennett. I saw the penis of this defendant, Bennett, very plainly before Galbert placed his head over it. The condition of the penis of the defendant was erect, and then Galbert placed his mouth over it and moved his head up and down for several moments. He withdrew the penis of this man from his mouth and spit out, and sat down on the couch for a minutes or so, a few moments, probably,and left the room. This defendant laid on the couch after Galbert left the room. He laid on the couch. He continued to lie on the couch. I was present during the while performance that I have described. I am sure that the defendant is the man who performed the acts with Galbert that I have described. The room at the northwesterly corner of these premises, in which I state these acts occurred, at that time it was lighted by the light from the room adjoining. There was a doorway connecting this room with the room adjoining; the adjoining room was brilliantly lighted.

The Court: Well, it was lighted very brilliantly

Phelan: These couches on which the defendant and Galbert were lying were a few feet from the doorway; three of four feet.

Mr. Ely: And what was the - describe whether it was dark or light at the point that these two defendants were lying on this couch in this northwesterly cooling room?

Phelan: Very light. After I saw the defendant lying there, subsequent to Galbert's departure from this northwesterly room, nothing happened then. He continued to lie there.

Mr. Ely: And did you leave the room?

Phelan: No, sir; not for about - I left about ten minutes afterwards. During that time I was watching the defendants there. I next saw the defendant in the parlor of the bath corralled with a number of other men, rounded up by the police officers that had entered. And when he was in the parlor of this bath he had a sheet on him; naked, with the exception of a sheet. They were passed before the officers who were in the bath, one by one, and as they came along each officer picked out the man he wanted. I said, "I want that man," this defendant. Officer Fitzsimmons said, "I want that man."

Mr. Ely: What man?

Phelan: That defendant, also

Mr. Ely: Did you go the Ariston bath on the Evening of the 21st of February in pursuance of any orders?

Mr. Greenthal: Objected to, as immaterial, irrelevant and incompetent.

The Court: Allowed

Mr. Greenthal: Exception

Phelan: Yes, sir.

The Court: Was it under the orders of our superior officers?

Phelan: Yes, sir.

Mr. Ely: What officer was in command and control of the police officers sent there, to the Ariston Baths on the evening of the 21st of February?

Phelan: Acting Inspector Walsh. I saw him after I went to the Ariston Baths.

Mr. Ely: At half past nine on the evening of the 21st of February?

Phelan: I next saw him at about a quarter to two. Acting Inspector Walsh entered the baths. I found him in the office. He was accompanied by a number of other officers and then it was that this defendant and others were put into the parlor and he was picked out by me and Fitzsimmons.

Mr. Ely: Do you know who actually took him into custody?

Phelan: Well, the officer in the case was Officer Carley, John Carley, a member of the 22d precinct. I do not remember who took him to his dressing room, to dress, to hand him over to Carley. I don't know, I think it was Officer McCutcheon. I am not sure about that.

Cross-exmination by Mr. Greenthal:

Mr. Greenthal: You say you were under Inspector Brooks or Walsh, at least?

Phelan: Yes, sir.

Mr. Greenthal: A special detail?

Phelan: Well, I don't understand your question.

Mr. Greenthal: Were you specially detailed to his staff on that occasion?

Phelan: Yes, sir - no, not on that occasion.

Mr. Greenthal: Well, how long had you been under Inspector Walsh?

Phelan: Well, that was the first day I was in the office. I arrived at the baths about nine o'clock. I did not see the defendant enter the baths. For the first time that night I saw Officer Fitzsimmons when he arrived at the baths about 9:30, and I got there at nine; I was there first. I saw the defendant Bennett for the first time, I think it was about 10 o'clock. I testified in the Police Court.

Mr. Greenthal: Do you remember this question being asked of you, and answered by you: "What time did you see the defendant Bennett? A. I seen him at various times from nine o'clock until 3:30." Did you make such an answer?

Phelan: Yes, sir; I had no means of telling the exact time. After I arrived there, well, I should judge it was about an hour. At that time I saw defendant in the parlor and I saw him all over the baths, walking all over, from room to room. Walking around. When I first saw the defendant I did not speak of him. I was undressed when I met him in the hall, with the exception of a sheet. That was about ten o'clock. Between half-past nine and ten o'clock I saw Officer Fitzsimmons. I spoke with him. Officer Fitzsimmons was with me at the time I spoke to the defendant. Well, I spoke to him - he spoke to me, rather, at eleven o'clock. Officer Fitzsimmons was there at that time. That conversation was had in the parlor. It is right near the office. Right close to the office. This northwesterly room is situated at the other extreme westerly end of the baths. At the westerly end of the baths. The name of the officer that went with the defendant to the dressing room, I didn't take particular notice of that, no, sir; I believe it was Officer McCutcheon. When I got into that room I found other people in that room besides the defendant, the northwesterly room. Why, there were between ten and fifteen, I should judge, I didn't count them. I could distinguish these different people. I could tell them by face. I don't remember placing any of them under arrest.

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

Phelan: Well, I don't recall now whether I did or not. I am interested, I think, in some nine cases.

Mr. Greenthal: How many other officers were in that cooling room besides yourself and Officer Fitzsimmons?

Phelan: Well, which cooling room?

Mr. Greenthal: The northwesterly room?

Phelan: Why I saw Officer McCutcheon coming from that room when I entered. Officer Fitzsimmons was with me going in. I was a witness in the Schnittel case.

Mr. Greenthal: Now, officer, how far is the room in which you found Schnittel form the room in which you discovered Bennett? How far is the distance between the two rooms?

Phelan: Why, it is about fifty feet, I think. It would take me to walk fifty feet a few minutes probably a minute; about a minute. The time I left that room, the Schnittel room, well, it was about 1.24 about that. And I went direct to the northwesterly room where I found Bennett. I didn't fix the time, only there was a clock on the wall and I looked at it occasionally. That clock was situated in the corridor there, in the hallway. I don't know whether I looked at it at that time; no, sir. I was also a witness in the Galbert case. I do not know where the defendant Bennett's dressing room was at that time. This parlor where the defendant was picked out by me is right directly off the office. Most all the people who were arrested were put in that parlor, that larger parlor. It was nor large enough to hold all of them.

Mr. Greenthal: Well, about how many were put there?

Phelan: I don't know.

Mr. Greenthal: Would you say 50?

Phelan: I don't know

Mr. Greenthal: 75?

Phelan: I don't know.

Mr. Greenthal: 100?

Phelan: No. I believe that there were less than 75. Thirty-four people were placed under arrest that night. I believe.

Mr. Greenthal: And weren't there 75 placed under arrest and 34 held out of them?

Phelan: Yes, sir; I think so. At the time these people were placed in the large room they were all undressed. They merely had a sheet around them. I made my identification as these people passed out, one by one. None of them had their street clothes on. These prisoners were allowed to go to their rooms to dress. The prisoners after they were dressed were taken out, in company with officers, and placed in the patrol wagon.

Mr. Greenthal: So that you didn't have Bennett under your supervision at all times?

Phelan: Not after he was placed under arrest, no, sir. After I identified a man coming out of that large parlor, in a sheet, I lost sight of the defendant. I remember appearing in the West Side Police Court. They have quite a large pen there. I was in the Police Court and I went to this pen with the other officers in the case on the following day, not for the purpose of identifying my prisoner. I went there with Officer Fitzsimmons and Officer McCutcheon. I did not have a dispute with Fitzsimmons and McCutcheon as to who my prisoner was, positively not. I went into this westerly room at about 1:24, about that time.

Mr. Greenthal: And how long had you been in that room before Galbert entered the room?

Phelan: Why, he was in the room when I entered.

Mr. Greenthal: Galbert was in the room?

Phelan: Yes, sir.

Mr. Greenthal: At the time you entered?

Phelan: Yes, sir.

Mr. Greenthal: What was the first thing that attracted your attention to Bennett and Galbert?

Phelan: Galbert was standing alongside of me, against the wall, and he walked over across to the couch where the defendant was laying. Galbert was standing against the wall next to me.

Mr. Greenthal: And how close to Bennett was he at the time?

Phelan: Oh, about three or four feet.

Mr. Greenthal: And how long did Galbert stand alongside of you before he approached Bennett?

Phelan: A few minutes.

Mr. Greenthal: What do you call a few minutes?

Phelan: Three or four minutes.

Mr. Greenthal: A few minutes?

Phelan: Yes, sir; a few minutes

Mr. Greenthal: Well, won't you say whether it was one or two or three or four or five minutes?

Phelan: No, sir; two or three minutes.

Mr. Greenthal: And then, right in our presence Galbert went over to Bennett, raise this man's legs - is that right?

Phelan: Yes, sir.

Mr. Greenthal: And you say - was Galbert standing at the time?

Phelan: He was leaning forward a little, slightly.

Mr. Greenthal: He was leaning forward, and he inserted his penis in this man's anus; is that right?

Phelan: Exactly.

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

Phelan: It was about two or three feet.

Mr. Greenthal: Just measure there (indicating the witness chair)?

Phelan: Just about as high as this chair,or a little higher (indicating the witness chair).

Mr. Greenthal: And Bennett was reclining on that lounge?

Phelan: He was

Mr. Greenthal: Now, Galbert is quite a tall man, ain't he?

Phelan: Yes, sir.

Mr. Greenthal: Now, will you kindly stand up, Mr. Officer? Now, you say that the couch was right below your knee?

Phelan: Oh, it is a little higher than this chair.

Mr. Greenthal: A little higher?

Phelan: Yes, sir.

Mr. Greenthal: Above or below your knee?

Phelan: Above. I am positive about that. I did go close up against the couch. I stood up against it. I was standing up against that couch when Galbert inserted his penis in this man's anus.

Mr. Greenthal: And did Galbert see you there, then?

Phelan: He must have seen me.

Mr. Greenthal: Did he look at you while you were standing there?

Phelan: I don't know whether he did or not.

Mr. Greenthal: Now, where was Officer Fitzsimmons, at that time?

Phelan: Standing right alongside of me.

Mr. Greenthal: Now were you standing toward the door or the wall, at the time?

Phelan: I was standing right alongside of Galbert. Toward the door. I am sure about that.

Mr. Greenthal: Now, after he inserted his penis in this man's anus what did Galbert do with Bennett's legs.

Phelan: He had ahold of it in his arms like that (illustrating), that way. Held out all the time.

Mr. Greenthal: Now, did you get down close to see the penis enter the anus?

Phelan: I leaned over slightly, yes. I stooped over, slightly forward. I swear positively that I saw that penis enter that anus. There is no question about that. It remained in the anus a few moments. After it was drawn out, its condition was a state of collapse. Right then and there, I am positive of that. It was in a state of collapse. After that transpired, Galbert laid down on the couch with the defendant and placed his arms about him, and this defendant and Galbert kissed one another several times, and I was still standing there. And this was all done in my presence, and in the presence of Officer Fitzsimmons, and these ten or fifteen other people were in the room. When the penis was withdrawn from Galbert's mouth it was limp, in the state of collapse. It was limp. I did not then and there place these defendants under arrest. I and Officer Fitzsimmons remained in that room for about ten minutes. I remained there ten minutes. I remained there about ten minutes. Officer Fitzsimmons remained there with me.

Mr. Greenthal: And Galbert and Bennett continued to remain in that room?

Phelan: Why, he laid down on the couch for a little while, and then got up and went out.

Mr. Greenthal: Who went out?

Phelan: Galbert

Mr. Greenthal: Galbert left?

Phelan: Yes, sir.

Mr. Greenthal: Did you follow Galbert out?

Phelan: No, sir.

Mr. Greenthal: Did Officer Fitzsimmons?

Phelan: No, sir, we both watched him leave the room.

Mr. Greenthal: Now did you remain in the room until Bennett got off the couch?

Phelan: No, sir, I did not.

Mr. Greenthal: Did you leave the room before Bennett got off the couch?

Phelan: I did.

Mr. Greenthal: With Officer Fitzsimmons?

Phelan: Well, I left alone. He left after me.

Mr. Greenthal: You say you went first?

Phelan: Yes, sir.

Mr. Greenthal: How long after Galbert had left?

Phelan: About ten minutes.

Mr. Greenthal: About ten minutes?

Phelan: Yes, sir.

Mr. Greenthal: Afterwards?

Phelan: Yes, sir. I know when the raid took place. It was about a quarter to two. After I left that room the raid took place, about ten or fifteen minutes afterwards. I say that the raid took place at a quarter of two, and I entered the dark room about 1:24 and I remained in that room a few minutes before this act was committed. I remember testifying a moment ago that I stood alongside of Galbert, against the wall, for a few minutes. So that, as soon as I entered the room, almost within two or three minutes, this act was committed. That is right. That would bring the time up to about 1:28. I left the room, about ten minutes afterwards. That would bring it up to about 1:38. I remained in the room ten minutes after the act was committed. At the time the raid took place I was going out in the hallway. I still had that sheet thrown around me. When I made the identification of these defendants, or this defendant, I did not have that sheet on me. I was then dressed. It took me a few minutes to dress. Two or three minutes. There were three other couches in this room, the northwesterly room, besides the couch on which I say I found the defendant, Bennett. Other people were lying on the couches and other people were standing alongside of the couches, yes, sir, around the wall, yes.

Mr. Greenthal: And how large a room was this, Officer!

Phelan: Well, I should judge it to be about 15 by 20; about that; I don't know.

Mr. Greenthal: And these people that you speak of, these ten or fifteen people, besides the officers, in this large room, were they walking about?

Phelan: No, sir, they were standing around the wall.

Mr. Greenthal: Against the wall?

Phelan: Yes, sir.

Mr. Greenthal: And some were lying on the couches?

Phelan: Yes, sir. There were person lying on the couches, on the two westerly couches, yes.

Mr. Greenthal: Now, Officer, how large a passage way is there between this outside room and this northwesterly room?

Phelan: Why, it is a very large passageway, the whole width of the room.

Mr. Greenthal: And is there anything between the passageway?

Phelan: Portieres, yes.

Mr. Greenthal: And does that screen the light from entering that room?

Phelan: No, sir; they were drawn aside.

Mr. Greenthal: They were drawn aside?

Phelan: Yes, sir.

Mr. Greenthal: Do you remember this question being put to you: "Q. Was this room dark?" And our making this answer: "A. Absolute dark, except the light that shone overhead"?

Mr. Ely: Objected to

The Court: Yes. This form is not proper, this form of question.

Mr. Greenthal: Well, I will take an exception.

Mr. Greenthal: Do you remember this question put to you in the Police Court?

The Court: When and where?

Mr. Greenthal: In the Police Court, on the day the defendant was arraigned.

The Court: Now, what testimony that this witness has give here do you seek to show a contradictory statement of; you must lay the foundation, counsellor.

Mr. Greenthal: Well, I have laid the foundation, sir. I want to show a contradictory statement about the light.

The Court: Then ask the question directly, as what he testified to here.

Mr. Greenthal: Did you not testify there -

Mr. Ely: Objected to

The Court: Excluded.

Mr. Greenthal: Exception

Mr. Greenthal: You testified a moment ago that the room in which you found the defendant was brilliantly lighted.

Phelan: Yes, sir.

Mr. Greenthal: Now was this question asked you in the Police Court, when the defendant was arraigned before the City Magistrate, City Magistrate Pool: "Q. Was this room dark?" And did you make this answer to that question: "A. Absolutely dark." Did you make that answer?

Phelan: Well, continue and see what I said after.

Mr. Greenthal: Except for the light that shone over the portieres?"

Phelan: No, sir, I didn't say that at all.

Mr. Greenthal: You did not?

Phelan: No, sir.

The Court: As I understand it. Officer, you state that the room, the particular apartment in which you say the transaction in which you have described took place, had not lights in it, of itself?

Phelan: No, sir.

The Court: But that there was light in the room, reflected from lights in an adjoining room?

Phelan: Yes, sir, exactly; that is it.

The Court: What was the nature or condition of the walls that partitioned or separated the room where you say the transaction took place from the room in which the light shone?

Phelan: Why, there was a large doorway, the whole width of the room, on which there was a pole hanging across.

The Court: What?

Phelan: A curtain pole across the top, and there were portieres hanging from the pole drawn aside to the wall.

The Court: So, then, this large doorway, the width of the room, was practically speaking, unobstructed?

Phelan: Yes, sir, exactly.

The Court: And through this doorway the light streamed?

Phelan: Yes, sir; in a direct line; a flood of light came through the door.

Mr. Greenthal: Officer, did you at any time after you left this northwesterly room, return to that room again?

Phelan: No, sir, I did not. Next I saw Officer Fitzsimmons, when he was dressed. He was also going into the parlor where the prisoners were.

Mr. Greenthal: Officer, do you know a person by the name of Lawrence?

Phelan: We have arrested a person that night that gave that as his name.

Mr. Greenthal: Do you know who made the arrest?

Mr. Ely: I object to that as immaterial.

The Court: I sustain the objection.

Mr. Greenthal: Did you see the prisoner Lawrence?

Mr. Ely: I object to that as immaterial.

The Court: It is immaterial. I sustain the objection.

Mr. Greenthal: Exception

Mr. Greenthal: Do you know who identified Lawrence on that night?

Mr. Ely: I object to that as immaterial.

The Court: Objection sustained. It is immaterial.

Mr. Greenthal: I will take an exception.

Mr. Greenthal: Do you know whether or not there was a man by the name of Lawrence there that night?

Mr. Ely: I object to that as immaterial.

The Court: I will sustain the objection.

Mr. Greenthal: I except

Redirect-examination by Mr. Ely:

Mr. Ely: Now, Phelan, why didn't you place this defendant under arrest immediately after you had seen the act that you have described occur, between him and Galbert?

Mr. Greenthal: This is objected to. The form of the question is objectionable.

The Court: I will allow the question.

Mr. Greenthal: Exception. Did you Honor hear the entire question? Why?

The Court: Yes.

Phelan: I was under instructions from my superior officer.

Mr. Ely: Go on. What?

Phelan: Not to place anyone under arrest.

Mr. Greenthal: I object to that. That is giving a conversation now.

The Court: No; he is simply stating the facts. I do not consider that it is very material.

Mr. Ely: No, sir. But they asked that question themselves, as to why he did not place him under arrest immediately; and now I want to show why he did not.

The Court: I will permit you to do so.

Mr. Ely: Why not?

Phelan: I was acting under instructions from my superior officer.

The Court: To do what?

Phelan: To hold any evidence until the Acting Inspector entered the premises.

Mr. Ely: And that is the reason why you did not place him under arrest?

Phelan: Yes, sir.

Mr. Greenthal: I move to strike that out as immaterial, irrelevant and incompetent.

The Court: No, will allow it.

Mr. Greenthal: Exception.

The Court: It may go to the question of the officer's attitude in the performance of his duty, and it is proper that the jury should know all the facts and circumstances connected with the matter.

Mr. Greenthal: Will your Honor give me the benefit of an exception?

The Court: Yes.

Mr. Ely: One other question. Did you know the defendant before that eveing?

Phelan: No, sir.

Mr. Ely: Did you ever have any trouble of any kind with him?

Phelan: No, sir; I never saw him before.

Unless otherwise stated, the content of this page is licensed under Creative Commons Attribution-ShareAlike 3.0 License