People v. Walter Bennett, Appeal

Supreme Court,









Charles E.Le Barbier, Attorney for Defendant-Appellant, 120 Broadway, Borough of Manhattan, New York City

William Trayers Jerome, District Attorney


Statement 1
Notice of Appeal 2
Indictment 3
Judgment 5
Charge to Jury 78
Motion for New Trial 86
Defendant's Requests to Charge 87
Stipulation 88
Order Filing Case 88



Thomas F. Phelan direct 8
cross 13
redirect 23
N. J. Fitzsimmons direct 25
cross 31
Harry McCutcheon direct 41


Walter A. Bennett direct 43
cross 46
redirect 55
Jennie Dunn direct 57
cross 59
Delia Egan direct 61
cross 61
Katie Dunn direct 62
cross 62
Catherine Bolton direct 62
Frances S. Bright direct 63
cross 63
Walter E. Bentley direct 64
cross 64
George Galbert direct 64
cross 67


George Connolly direct 68
cross 68
John O'Keefe direct 70
cross 71
redirect 73
Harry McCutcheon direct 73
Thomas F. Phelan direct 73


Walter A. Bennett direct 75
George Galbert direct 76
cross 77
Florence Clark direct 77

New York Supreme Court,


The People of The State of

New York,



WALTER BENNETT, Defendant-Appellant



This is an appeal by the defendant from a judgment of conviction of the crime of sodomy, rendered against him on June 26, 1903, in the Court of General Sessions of the Peace in and for the City and County of New York, upon trial had before Honorable John W. Goff, Recorder, and a jury; and from an order denying a motion for a new trial, and in arrest of judgment, under an indictment for such crime duly found by the Grand Jury of the County of New York.


On February 21, 1903, the defendant, with a number of others, was arrested in the Ariston Baths, 55th street and Broadway, Manhattan, County of New York, for the alleged crime of sodomy.

Two counts were set forth in the indictment (fol. 9). The first count charged assault in that defendant "did make an assault, and him, the said George Galbert, then and there, feloniously did carnally know by and with the anus of him the said Walter Bennett * * * ."

The second alleged the felonious voluntary submission of said defendant to such act of carnal knowledge.

The alleged acts appear sufficiently in the printed case and in the brief without further discussion of the same at this moment.

The People's case in chief consisted of three pieces of police testimony (fols. 19-127), and in rebuttal of the production again of two of the same officers, and two bath attendants (fols. 202-209), the latter of whom O'Keefe says (fols. 217),he "was arrested for violation of the excise," and apparently speaking for himself and Connolly, the other bath attendant, being asked:

Q. Well, you were discharged, weren't you? (fol. 217) answered by saying:

"We were paroled" fol. 217

All of which could have no other meaning than that these bath attendants had been duly tried for violation of the excise law, had been duly convicted in the Court of Special Sessions,and had been paroled.

They were undoubtedly paroled for no other purpose than to await the effect of their testimony against the defendant, which in the event of conviction would assuredly earn for them their discharge.

Therefore at the expense of swearing themselves out, somebody had to be sworn in.

This was all the kind - and peculiar kind - of testimony in behalf of the People; that is to say, three pieces of police testimony, and two very questionable pieces of testimony by bath attendants,temporarily "paroled."

The defense consisted:

  • 1. Of a vigorous denial by defendant.
  • 2. The production of the alleged co-performer Galbert, who was under indictment, but who voluntarily took the stand on behalf of defendant. Galbert was a man of the highest character, as his testimony and surroundings demonstrate.
  • 3. The abounding good character of the defendant.
  • 4. An unimpeached alibi as to the early part of the evening in question.
  • 5. Mistaken identification.
  • 6. The apparent physical impossibility of the performance of the alleged act under the evidence adduced.
  • 7. The manifest incredibility of the act.
  • 8. The reasonable doubt that must necessarily have arisen by virtue of the defenses pleaded, and the evidence under each defense set forth.

It will be observed that not a single disinterested or unbiased or unprejudiced witness was produced by the prosecution.

The jury found the defendant guilty. This verdict is discussed later on, and it will be seen how the jury reached such determination.

In addition to the charge as laid in the indictment, the learned Trial Court permitted evidence of an entirely separate and distinct and different crime on the part of George Galbert, not jointly indicted, to go before the jury.

After all the evidence was in as to this separate act, and distinct and different crime, the learned Trial Court commented upon it in charging the jury, indulging only in about five lines and a half of print to call their attention to such "different act" as admitted by the learned Trial Court in charging as follows:

The defendant is not indicted or on trial for doing the act that witnesses described upon the person of Galbert. That constitutes a different act. He is indicted and tried for voluntarily submitting to an act of carnal intercourse between Galbert and himself * * * (fol. 236)

With all this so-called evidence in (of police officers and interested bath attendants and no other kind of testimony), and improperly and illegally in (as counsel contends), whether exception was taken or not, in view thereof, and the charge of the learned Trial Court commenting upon the People's testimony, in the form of animated argument (fols. 239-243), without reference to defendant's side of the case, or the effect of defendant's testimony, if true, it is not surprising that the defendant was convicted, and his only relief could be by an appeal to this Honorable Court, and that for the reasons set forth at folio 256, et seq., the judgement of conviction and the order denying the motion for a new trial should be reversed.

The defendant went upon the stand (fol. 128), and testified positively, clearly and directly not only that he did not commit any such offense, but also related how he was arrested. He was not even in the room in which the alleged act is said to have been committed (fol. 135).

He had gone in for his bath, to take that alone, and get out. He had no room (fol. 131).

He was not in room at the time of the raid, "They came out, and Fitzsimmons was the one that spoke to me," and he said: "Get into that (fol. 135) room, God damn you," and I said "What for?" and he said, "Get in there, you are under arrest," and I said, "What for?" and he said, "Get in there and you will find out." … (fol. 136).

Moreover he says that Fitzsimmons took him; not McCutcheon (fol. 137).

The testimony of the defendant is strong; it is virile. There is no mincing matters. He also says he arrived at the Ariston Baths between 11:15 and 11:30. PRIOR TO THAT TIME HE WAS AT HIS HOME (fol. 129)

This testimony was very important, inasmuch as the prosecution (policemen) alleged that he was at the baths around half-past nine o'clock.

This question of time is discussed under Point I of this brief.

In support of his alibi (which was unimpeached), he called as a witness, Jennie Dunn (fol. 171), who testified positively that defendant did not leave her house until twenty-five minutes of eleven (fol. 174). This person was also a character witness who knew the reputation of defendant for decency and respectability, and who stated that it was good (fol. 175). A hard cross-examination (fol. 175, et seq.), failed to shake her.

Counsel for defendant desired to ask her a question on the redirect, but the learned Trial Court curtly refused to permit him so to do (fol. 180). This matter is taken up later on.

Delia Egan, another respectable and good woman, testified (fol. 181) as to the time defendant left the premises. Her testimony was not impeached.

Kattie Dunn (fol. 184) was another reputable witness for the defendant, also on the question of the alibi, whose testimony was in no wise impeached.

After the cross-examination, the attorney for the defendant decided to ask her a question on the redirect; but he was sharply prevented from so doing, even before putting the question,by the learned Trial Court,cutting him off short, by saying to defendant's attorney: "No, call your next witness" (fol. 186).

Catherine Bolton (fol. 186) was the next witness for the defense. She testified that she knew the reputation of the defendant for decency and respectability, and it was always good. Likewise Frances S. Bridge, who resided at the Dakota, No. 1 West 72d street (fol. 188), testified most favorably in behalf of the defendant.

The Reverend Walter E. Bentley (fol. 199), of the Church of the Resurrection, testified to the excellent reputation of defendant for decency and respectability.

Then in addition to all of the foregoing mentioned testimony - conclusive, indeed in itself - the alleged co-performer George Galbert (fol 192) took the stand in behalf of the defendant. Galbert had been arrested and indicted. He waived his privilege and volunteered as a witness for Bennett.

He had "never been at the Ariston Baths prior to the 21st of February" (fol. 199); and he testified unreservedly and unqualifiedly that he had never even seen the defendant at the Ariston Baths (fol. 200). Galbert was a man of the highest standing, and a draughtsman with the well known firm of Carrere & Hastings, 28 East 41st street, architects (fol. 192). he had been with them for some time. He gave a lucid explanation of his going to the baths that evening. He said:

"I had been to the exhibition of the Architectural League, at the Fine Arts Building in 57th street and Broadway. I went around the building for about an hour, looking at the exhibits, and started down Broadway" (fol 201).

He had never been at the baths before (fol. 201). In language that is altogether unmistakable, he denied absolutely the commission of any such dreadful offense (fol. 196), and he further says:

"The first time I remember of seeing Bennett is Sunday, the Sunday after we were taken from the 47th street station, up to the 53rd street station." (fol. 197).

If this testimony be true, and there is no reason to doubt it, but on the contrary every reason to believe it to be true, just imagine what a terrible predicament he found himself in, and what utter mortification and humiliation he suffered.

Such was the defense? It clearly entitled the defendant to an acquittal. The pieces of police testimony offered were conflicting, confusing, contradicting (see Point I.). The testimony for the defense was dignified, reputable, affirmative - and unimpeached. How the jury went astray on the fact, and the case miscarried in law is the subject of discussion later on. The whole case was a miscarriage of justice. For that reason, the defendant, invoking the original jurisdiction of this Court, pleads do novo the trial of his cause.


The present case is entirely different, in its consideration, from the ones heretofore submitted to this Honorable Court - and affirmed, without opinion - excpet the Bahr case (infra) reversed.

See People v. Casson, argued Dec. 8-03; affd. Dec. 26-03.
See People v. Schnittel, argued Feb. 2-04; affd Feb. 19-04.

It certainly is not amiss to refer to these two cases (supra) in order to appreciate the difference with the one at bar, as well as to cleanse somewhat the atmosphere in such an ill smelling case wherein it is asserted that the defendant Bennett was, and is entirely innocent of the charge. It is better that ninety-nine guilty person should escaped than that one innocent person should suffer.

Nor is the instance unfamiliar in the history of crime that innocence may well be and have been the defendant's, and yet not shelter him from arrest and prosecution, and while it has sustained the conscience of many a defendant, yet it has not prevented the arrest, indictment, prosecution and trial. The most recent celebrated case abroad is that of Dreyfus; and the latest, at home, that of Molineux.

At all events, the defendant Bennett is awaiting, in Sing Sing Prison, the outcome of an appeal to this Honorable Court, and he has faith in that justice which will correct an outrageous decision by a jury, and set aside a verdict found against the evidence and against the law.

In the Casson case (supra) great stress, by the District Attorney, was laid upon the fact that Casson upon cross-examination was obviously confused. As set forth in the People's brief it was said that:

"He claimed that he was going to visit his foreman who was sick and lived in Fifty-ninth street (fol. 92), but could not explain at all satisfactorily how he found himself in Fifty-fifth street, &c., &c." (p. 12, People's brief, People v. Casson)

No such characterization can be made in the case at bar. Furthermore in the Casson case, the People also made greatly of the fact that:

"He (Casson) did not set up good character, nor an alibi, nor any defense of an affirmative character. He relies upon denials. (p. 12, People's brief, People v. Casson).

In the present case, as hereinfater stated, affirmative defense were set up. The alleged co-performer, George Galbert, under no obligation to appear as a witness, and constitutionally protected, under the law (being a defendant under indictment, had he desired to exercise his privilege), voluntarily came forward, and denounced as absolutely false the charge made against the defendant Bennett.

Galbert's character was beyond reproach. He was a draughtsman in the well known house of Carrere and Hastings, 28 East 41st street - architects of irreproachable standing, where he had been employed for three years and four or five months.

This testimony of Galbert, was brushed aside as of no consequence, and yet all that could be relied upon by him was given, namely, his own respecting self as a witness, his denial, and manifestly his good character.

In the Casson case the People impressed the fact upon the Court that:

"The net result is that we have the oath of four police officers in the one scale, and the single oath of the defendant Casson in the other (p. 13, People's brief, People v. Casson).

And thereupon in that case the People cited the well and worn argument that:

"All issues of veracity' were, of course, for the jury to decide; and upon settled principles this Court will not interfere with the verdict."

Id. p. 13, People's Brief.
People v. Casson.

In a case, like the present one, fraught with such disastrous consequences, the defendant, in his intense mental and agonizing anxiety, implores the original jurisdiction of this Honorable Court to brush aside the consideration of the jury (manifestly unjust), and view the evidence originally, in its own behalf.

The arbitrary presumption of the law is that the defendant did not perform the act charged.

People v. Tench, 167 N. Y., 222-2.

The General Term of this Department in 1895 held that:

"this Court is as competent to pass upon the credibility of witnesses so examined as the jury itself."

Lavelle v. Corrignio, 86 Hun, 139.

In the Schnittel case, following (supra), apparently no question of character was set up. That case seemed also to rest upon simply a denial, and that he, the defendant, was taking the baths for medical reasons.

Page 12, People Brief.
People v. Schnittel.

The District Attorney, in Schnittel brief, south to impress upon this honorable Court that:

"If, however, the testimony of this defendant, Schnittel, is to be believed, his silence as to any improper practices, by others, can be interpreted in one way only, as implying that the police officers made up their entire story out of the whole cloth."

This claim is so ingenuous, in view of the decision in the Molineux case (168 N. Y., 264 N. Y.), that separate and distinct offenses could not legally be proved, that it needs only a reference to that authority (supra) to refute any such absurd argument.

In conclusion in the Schnittle case, the District Attorney says:

"When the Casson case was before this Court, the District Attorney considered it to be the first of a series, and treated it accordingly."

P.22, People's Brief, People v. Schnittel.

What this "first of a series" meant is left to conjecture for it certainly does not follow that the decision of any one case is governing or controlling upon any other. Unfortunately, counsel may not refer to the Galbert case, for it is not in the recrod. None of the reasoning in the Casson and Schnittel cases in any way touch the present (Bennett) case.



Obtuseness of observation goes to the very root of identification.

If the testimony generally of a police office be conflicting, contradicting and confusing, it necessarily weakens any positiveness of identification, and is such as to render his testimony of no weight in a case of this kind, where his testimony in every respect should, and indeed must be, unequivocal, absolute and categorical, and the identification necessarily full, positive, and complete.**

For instance, police officer Phelan (fol. 22), says (fol. 25):

"I first noticed this defendant at half past ten" yet his testimony was different in the Police Court (fol. 40):

"Q. Do you remember this question being asked of you, and answered by you: "What time did you see the defendant Bennett?.
A. I seen seen him at various times from nine o'clock until 3:30."
"Q. Did you make such an answer?
A. Yes, sir; I had no means of telling the exact time."

This answer is manifestly false, for this same witness says:

"there was a clock on the wall and I looked at it occasionally. That lock was situated in the corridor there in the hall" (fol. 44).

A very vital piece of testimony that reflects most seriously upon the credibility of this officer, and which may serve in this Court to entirely discredit his testimony, was as follows:

This witness says that he and another officer were standing in this cooling room -

"Q. And what happened when you were standing there? A.This defendant was lying on the couch and a man whom I have SINCE found out to be George Galbert (fol 29).

Q. Now wait a minute. Is that George Galbert (indicting a man at the bar)? A. That is the man. Yes.

Q. The man that now approaches the bar? A. Yes, sir.

Q. That is the man? A. Yes, sir."

**Q. The person that came into the cooling room where you were with the defendant and officer (fol. 30) Fitzsimmons, on the morning of the 21st of February, 1903? A. Yes, sir. (fol. 31). **

This same witness swears directly to the contrary later on. For instance:

"Q. And how long had you been in that room before Galbert entered the room? A. Why he was in the room when I entered.

Q. Galbert was in the room? A. Yes, sir.

Q. At the time you entered? A. Yes, sir. (fol. 48).

Were his testimony of weight, he would at the tim have identified Galbert, and not "have since found out to be George Galbert" (fol. 29).

There can be no misunderstanding this kind of testimony. It cannot but fail to impress upon this Court its utter unreliability. It shows that the jury ignored the evidence, which this Court may well consider, irrespective of the verdict of a jury.

It is precisely in a case of this kind, and upon such kind of testimony, that this Appellate Trilbunal may well exercise its original jurisdiction, and not be bound by a jury determining any question of fact.

If such absolute contrariety in the testimony of a witness can be found, it certainly follows that his obtuseness of observation is very dense, or that his testimony is false. Escape form such conclusion seems impossible.

Furthermore, this same witness said he 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 (fol. 35).

And he further says:

"this defendant and others were put into the parlor and he was picked out by me and Fitzsimmons" (fol. 38)

Yet he is uncertain as to who took defendant into custody (fol. 38):

"I do not remember who took him to his dressing room to dress (fol. 38).

It is to be noted that defendant had no dressing room (fol. 131).

The defendant had merely gone in for his bath and says so in unmistakable langauge (fol. 133, et seq.). However,to return to police officer Phelan (supra), not only is his testimony, as given, confusing, conflicting and contradicting, but he also is unable to state HOW MANY were in the northwesterly room (fol. 42), and does not "remember placing any of them under arrest" (fol. 43).

"Q. Don't you remember whether you did or not? A. Well, I don't recall now whether I did or not" (fol. 43).

Nor is this witness able to state how many were put in the parlor. He says: "I don't know." (fol. 45).

"Q. Would you say 50?" I don't know.
"Q. 75? A. I don't know.
"Q. 100? A No." (fol. 46)

This kind of testimony might possibly be expected in a novice, but certainly not in a trained detective.

He further says:

"At the time these people were placed in the large room they were all undressed. They merely had a sheet around them" (fol. 46).

When it is considered that there were no distinguishing marks about Bennett from the ordinary run of mortals, and there was that large number "corralled," it would seem that no certainly of identification could be made out, and the witness was necessarily confused, apart even from the unreliability of his testimony, as heretofore pointed out (supra).

Was the memory of this witness safe? Was it secure? The identification was made from memory, as the witness himself testifies: "I made my identification as these people passed out, one by one. None of them had their street clothes on" (fol. 46).

Can it be surely said that his memory was safe and secure when it is considered that the room in which the witness originally claims to have seen him "was lighted b the light from the room adjoining" (fol.33).

Has not some horrible mistake been made? This room where the act is alleged to have been committed was "DARK". This witness himself says so.

"I entered the dark room about 1:24 and I remained in that room a few minutes before this act was committed." (fol. 57).

It was sought to impeach the witness positively by confronting him with testimony that he had given in the Police Court.

Q. Do you remember this question being put to you:

Q. "Was this room dark? and your marking this answer: "A. Absolute dark. except the light that shone overhead" (fol. 60).

Upon objection by the People, the same was sustained and exception taken (fol. 61).

Again did counsel strive to impeach this witness, and having laid the necessary technical foundation (for the People were evidently endeavoring to take advantage technically), counsel asked:

"Q. Did you not testify there-"
Objected to excluded; Mr. Greenthal, exception (fol. 63).

It is submitted that the learned Trial Court erred in sustaining said exceptions.

Counsel for defendant was right in seeking to impeach, and the objection should not have been sustained.

A great deal of reliance upon the confusion concerning a correct identification may be place upon the witness' own words when he said:

"I entered the dark room about 1:24" (fol. 57)

No amount of argument by the People can reason this word "dark" into "light." Dark means dark. If, therefore, witness entered "the dark room," the question of identification become a most serious one.

Besides some ten or fifteen people (fol. 42) were in the dark room at that time. Identification was simply impossible.

Notwithstanding the verdict of a jury, "it is never too late to do justice"

Keiser v. Rankin, 34 App. D., 288.

It would be charitable to say that this police officer Phelan was mistaken in his identification. His story is improbably, nay, incredible. It would seem that if any such position were had as testified to by this same witness (fol. 50, et seq.), then these two men, respectable in character, reputable in life, each one engaged in his own profession, must have been simply acrobats pandering to vile and disgusting habits that make us hide our head in shame to think that some part of the social fabric has been so shattered in its morals.

As against the vacillating, contradictory, and confusing testimony of this officer, there is opposed -

  • 1. The straightforward story of the defendant, bristling in its denial, and breathing with indignation; strong in denunciation, and explicit in detail.
  • 2. The straightforward story of George Caldwell, indicted, but who voluntarily came forward in behalf of defendant. Caldwell, indicted as Galbert, was a man of irreproachable character and surrounded by good character, which was evident when he stated that for three years and more he was and had been draughtsman for the well known and reputable firm of Carrere & Hastings, architects, 13 East 41st street.
  • 3. The testimony of the Reverend Walter E. Bentley, of the Church of the Resurrection, who, in unmistakable terms, said that the reputation of defendant for decency and respectability is and always was excellent.
  • 4. The testimony of Mrs. Frances S. Bridge living at the Dakota, 1 West 72d street, was very weighty in favor of defendant, as was also the testimony of Catherine Bolton.
  • 5. Then also as against the vacillating, contradictory and confusing testimony of Police officer Phelan, there was opposed the clear and positive testimony of Delia Egan (fol. 181), and Katie Dunn (fol. 184), as to the facts that Police officer Phelan was necessarily mistaken when he said he saw defendant at the various times he did before half-past ten, for the reason that defendant was at their house, and did not leave before that time.

All of this testimony was entirely unimpeached, and should have been credited by the jury, who apparently were swayed by the detestable nature of the offense, as well as the charge of the learned Trial Court, and its demeanor, attitude and conduct during the trial, and did not give the evidence any just and impartial consideration, but on the contrary ignored the same, being moved by prejudice and partiality. Nor did the learned Trial Court charge the jury in respect to the evidence presented. This matter is discussed later on.

Were Phelan's testimony true he certainly could not have overlooked the very important conversation, which if true, he must necessarily have heard between defendant and Officer Fitzsimmons, which is the next piece of police testimony in the case (fol. 25).

If true, that conversation is so vitally important that it cannot be overlooked. If not true, then the whole testimony of Officer Phelan may be - and should be - entirely discredited.

If only partially true that any conversation at all took place (even if not such a conversation as stated and testified to by Officer Fitzsimmons), then it follows, - necessarily and logically, - that the entire testimony of the officers is colored and that conclusion once reached, it may be safely asserted, as it is earnestly submitted, that the testimony of all of the officers is conflicting and confusing and contradicting, and that a grain of surmise has been ground into a barrel of conjecture, utterly unsafe upon which to predicate such a detestable crime, and wholly insufficient upon which to blast character and to destroy honor.

For instance, Officer Phelan says:

"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 pleasant time, if I would go to his room with him; I told him that I couldn't go now; that I would go later." (fols. 26-7).

This is not the alleged conversation that Fitzsimmons relates. He says:

"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 (fol. 95)."

Phelan is strangely silent upon this subject. If any such conversation had occurred, surely Phelan could not have forgotten it, if true.

Henry McCutcheon, another police officer, affects to have seen defendant at this same time (fol 123); but, strange to relate, he does not corroborate the amazing, and indeed, incredible story of Fitzsimmons, although he affects to described motions that necessarily are left to surmise, guess and conjecture.

Surely testimony of this kind may not be accepted by this Honorable Court in the exercise of its original jurisdiction so earnestly besought in this frightful case.

Yet, upon these three pieces of police testimony the prosecution rested its case.

However, let us return for a moment to the testimony of the second witness, which, for obtuseness of observation, seems as dense and stupid as the testimony of the first witness. It is a contraiety of utterances, which, at the end of its recital, while it leaves an unclean impression, nevertheless does not bear upon itself the stemp of veracity.

For instance: This witness purports to remember that he saw this defedant at about 9:30 P.M. (fol. 75), which statement is manifestly false, if his testimony at fol. 94 be taken into consideration, where he swears:

"The first time I saw the defendant Bennett was about 11 o'clock on that evening."

This statement was also manifestly false, because of the unimpeached testimony about the defendant's good character and alibi hereinafter referred to.

Again: This witness says: "Officer Phelan was not with me at all times up to the time that I went into Bennett's room" (fol. 96).

As a matter of fact defendant had no room (fol. 131).

Considering that "all the others in that bath were naked, except for a sheet" (fol. 100), a complete identification, upon the testimony of this witness, cannot be made out.

Upon this question of obtuseness of observation, take the following glaring contradictory statements between the two officers, upon which it is earnestly submitted, and indeed earnestly argued, that if their power (?) of observation be so dense and their power (?) of memory be so defective, it must follow that their identification could not have been complete nor full or positive. Words are certainly meant for construction, and if the bricks in the evidence do not fit, the building of the crime is certainly not made out. It would seem folly to argue otherwise. The verdict of a jury cannot plaster over the misfit, nor adjudge any fact as true if their only support be passion, prejudice or partiality.

For these reasons the original jurisdiction of this august tribunal is invoked, and it is hoped - not without success. Indeed, it should be successfully invoked.

Ponder over this kind of testimony that Fitzsimmonrs, a police officer, relates:

"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.

Q. Before or after Phelan left? A. I couldn't say.

Q. Don't you know? A. I wasn't paying any particular attention. I had my eyes on those two people all the time that I was in that room. I went into the building for a (fol. 110) specific purpose; for that very purpose, acting under instructions from my inspector.

Q. And now you want to say that you don't know whether Galbert left that room before Phelan or not? A. Well, I would say that they both left the room together.

Q. Now, can't you say whether Galbert or Phelan left the room together? A. They both left together.

Q. Side by side. A. It is a doorway, eight or nine feet wide (fol. 111).

Q. And were they side by side when they left. A. Yes, sir.

Q. Are you positive of that? A. Yes; I WILL be positive of that" (fol. 112).

This testimony is very confusing, if not dishonest. It squarely contradicts officer Phelan when he said NOT that they left side by side, but

"After I saw the defendant lying there, subsequently to Galbert's departure form this northwesterly room, nothing (fol. 34) happened then. He continued to lie there … I left about ten minutes after. During that time I was watching the defendant there" (fol. 35).

Phelan says that Galbert left room first (fol. 55), and Phelan also swears positive that he did not remain in the room until Bennett left. He says positively he left the room before Bennett got off the couch, i. e.:

"Q. Did you leave the room before Bennett got off the couch? A. I did."

and that he "left alone" (fol. 56)

Not only does Fitzsimmons contradict this "ten minute" business (fol. 110), but in addition also swears that Galbert and Phelan went out side by side (fols. 111-112).

Surely evidence of this kind is a travesty on justice.

However, this Honorable Court is invited to travel a little further into this kind of testimony and take up, for instance, something more on the question of the so-called identification of defendant.

Phelan says he saw defendant in the parlor (fol. 35) corralled with a number of other men, rounded up by the police officers that had entered… (fol. 35); defendant was "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" (fol. 35).

"Most all of the people who were arrested were put in that parlor, that larger parlor" (fol. 45)

Apparently all those arrested were picked out as they passed the officers (fol. 46, et seq.).

Yet, Fitzsimmons' testimony (fol. 115) is altogether contrary.

At one moment he says:

"All the persons arrested found in that building or in that part of the building where those baths were, were all placed in the larger parlor (fol. 113). Some were dressed and some were undressed. There were from seventy-five to one hundred 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 line, and as these people (fol. 113) passed out we identified certain people, the ones that we wanted. I BELIEVE I was the first person that identified Bennett. Both officers identified Bennett. Both officer identified him at the same time. … I did not take hold of Bennett at the time" (fol. 114).

Therefore, remembering what Phelan said at fol. 35 as to the identification being made in the parlor, this Fitzsimmons squarely contradicts him and says:

"Galbert was identified in his room" (fol. 115).

And furthermore, apparently wanting in recollection as well as uncertain in identification, this same officer (Fitzsimmons) with Phelan visits the pen at the Magistrate's Court. There was no reason for this visit. IT WAS THE DAY BEFORE THE EXAMINATION (fol. 117). His only object necessarily must have been to enforce or to make sure an identification; or, to fabricate one. Certainly no other excuse can be found or any properly set up. It was wholly an improper visit at that time. There could have been no reason or motive therefor. The officers must sustain the raid, and consequently, he purports to find… "//him along a lot of other prisoners…" (fol. 116).

Surely under all those circumstances herein before narrated it cannot be safely held that the identification was complete or positive.

Merely adding to the number of broken reeds gives no increase of strength

State v. Williamson, 42 Cann., 265

Thereupon suddenly the prosecution rested, after calling another officer, McCutcheon by name, whose testimony is short (fol. 123, et seq.), and inasmuch as criticism has already been passed upon him (supra) further comment seems unnecessary.

Obviously the prosecution was wholly a police case, actuated by police motive and supported by police testimony and with probably 75 men under their supervision, the opportunity of close or correct or full identification of this particular defendant under the facts as above narrated and commented upon, was not complete nor satisfactory, but on the contrary seems confusing and misleading, and such as not to warrant, the crime charged against him, without even taking into consideration the affirmative defenses set up and hereinafter commented upon.

It seems that the attorney for defendant made no motion to the learned Trial Court to advise the jury to acquit. It might have prevailed!

If the learned Trial Court's attention had been called, upon close argument, to the manifest contrariety in the confusing testimony of the People's witnesses, as well as the kind of testimony, together with the character of the witnesses, - their motive, bias and prejudice - and that such kind of testimony consisted principally of three pieces of police testimony, it is respectfully suggested that such a motion ought to have prevailed; and if denied, at that time, to have been removed successfully upon the close of the whole case.


The ruling of the learned Trial Court in no permitting counsel for defendant to propound questions to at least two witnesses, was error of such a kind and character as to call for reversal

The attitude, manner and demeanor of the learned Trial Court in that respect may not be overlooked.

Of course, examination in certain bounds is within the discretion of the Court; but in the cases cited, the questions were at least put to the witness, and for proper reason, the answers were excluded. No abuse of discretion could be claimed. The cases were reasoned out calmly and judicially.

Counsel for defendant, however, has found no case where it was permitted to ask a question of the witness, and have the question put for a ruling.

At the present case counsel for defendant WAS PRECLUDED from showing all the facts and circumstances connected with the matter when the learned Trial Court refused to permit him to proceed along certain designated lines, manifestly connected with the subject matter (fol. 67, et seq.).

The present case seems unique upon that subject.

The effect of the manner also, of the learned Trial Court, was necessarily disastrous to the defendant, and the weight with the jury was obviously conclusive against the defendant.

Remembering the detestable character of the crime, the position taken by the learned Trial Court did not savor, it would seem, of that impartiality of justice that was the object of the trial.

No such occurrence had happened in the People's presentation of the case; and, it is respectfully submitted that there was no good reason for the learned Trial Court to rule as it did, when the defense was striving by every delicate endeavor to wash out the nastiness of the stain placed by the charge of such an abominable crime upon the shoulders of the defendant.

In the opinion of counsel it belittled his case. How could such expressions from the Court do otherwise? It also, in counsel's opinion belittled the attorney.

Great Western T. P. Co. v. Loomis, 32 N. Y., 127
Le Beau v. People, 34 N. Y., 223
People v. Genet, 19 Hun, 91.

In the Genet case (supra) exception was taken to a leading question asked the witness (p. 100), whereupon the Court through Brady, J., expressed its general opinion supported by a number of authorities and citations.

There was nothing however of an arbitrary "SHUT OFF", as happened in the present case.

In the Great Western T. R. Co. v. Loomis (supra) the matter is somewhat closely discussed. The questions however were put to the witness, and excluded as irrelevant.

In the present case, counsel was not even allowed to put his question. It need not be intimated what question would have been put, nevertheless counsel at least had the right to propound the question.

As the Court said in the Loomise case (supra) p. 137:

"If the answer was not a matter of legal right, the question could properly be excluded unless it was relevant to the issue."

At least, and indeed at most, in the Loomise case, no question arose as to the right of propounding a question to the witness.

The present case (Bennett) is as far as counsel has been able to find out, the one solitary exception to the general rule.

To dismiss a witness summarily by shutting of any question, or any motion, or at least to not permit the right of a redirect examination, seems a novel proposition, and yet the record in this (Bennett) case is as follows:

"Mr. Ely: That is all.
Mr. Greenthal: One minute
The Court: No, call your next witness (fol. 186)."

Take for instance the following incident:

"Mr. Ely: That is all.
Mr. Greenthal: that is all; oh, I have one other question."
Mr. Greenthal: Miss Dunn…
The Court: No, you have concluded your examination.
Mr. Greenthal: I except to your Honor not permitting me to ask a further question.
The Court: You had concluded your examination" (fols. 179, 180)

In the Le Beau case (supra, 158 N. Y., 509) it was held that the extent of the cross-examination of a witness upon matters immaterial to the issue was in the discretion of the Judge before whom the trial was had.

No case, however, seems to uphold the entirely shutting off of questions, save the present ruling by the learned Trial Court in this (Bennett) case.

Take, for instance, the remark of the Court, at fol. 232.

"Mr. Greenthal: let me put my question first.
The Court: Well, you know that it is an improper question. Why do you put it? Strike out the answer." (fol. 232).

It is more respectfully submitted that counsel was entitled to ask the question.

He also had the right to ask the preceding question which was stricken out, namely:

"By Mr. Greenthal: Did you received any communication from him from Chicago at about that time?
A. I did.
Mr. Ely: That is objected to and I move to strike it out." (fol. 231)

Then followed as above set forth.

Not only was the question proper, but also the answer. It was in direct line to follow up by evidence aliunde, connecting the receipt of this communication with further proof, establishing the fact that defendant was in Chicago.

And if only leading up to that proof, it was also proper.

Upon the question of the attitude of the learned Trial Court, in the opinion of counsel, it was not proper for the Court to speak as it did at fol. 228.

It is submitted that the question put to the witness Galbert was entirely correct in form and in substance, in sur-rebuttal, considering the socalled rebuttal of the People, namely:

Mr. Greenthal:

Q. Mr. Galbert it has been testified to here, by Mr. Connolly and Mr. O'Keefe, that you were a constant visitor at the Ariston Baths; is that true or false? A. false.

The Court:


Imagine the effect of that statement upon the jury.

Yet, apart from the right claimed to ask the question, nevertheless also technically speaking, nothing in the cross-examination of Galbert by the People had been brought to his attention about Connolly and O'Keefe, and therefore, strictly speaking, the defense was, it is respectfully submitted, entitled to have the question and have the answer; and also to have it WITHOUT COMMENT form the learned Trial Court, and particularly without such statement as:


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