People v. Fisher , 249 N.Y. 419 ( 1928 )

These defendants were tried together and convicted of murder in the first degree committed while engaged in a felony.

During the first month of this year many robberies had been perpetrated in Brooklyn drug stores. Police officers had been detailed to protect these establishments and were stationed in some of them. On the night of January 31, William E. Kelly, an officer in plain clothes on duty in the rear of the store conducted by Irving Stoller at Nostrand avenue and Crown street, was shot and killed. Three young men were driven by a fourth to the store in a taxicab. All except the driver dismounted and, while one did not proceed beyond the outer room, two with drawn revolvers entered Stoller's prescription room. They commanded: "Stick em up," and in a struggle which followed between the officer and one of the invaders the policeman was killed. The three youths who entered the store have been identified as these defendants.

The driver of the taxicab, Samuel Krassner, was an accomplice and gave evidence on this trial. Subsequently, on his plea of manslaughter in the first degree, he was sentenced to a term of imprisonment. He testified that on the night of the murder he drove his taxicab from Suffolk and Rivington streets in Manhattan to Nostrand avenue and Crown street in Brooklyn. Helfant, Fisher and Dreitzer were his passengers. On five or six previous occasions he had gone with some of them when they held up places and on this night he understood that they intended to rob some place. On arrival near Stoller's drug store all three left the taxicab. Fisher and Dreitzer went around the corner of the building in which that store was located. Helfant returned to the car and directed Krassner to drive up to the corner. Then Helfant again left the cab and walked into the store. Four or five minutes later Krassner saw Dreitzer and Helfant running with guns in their hands. They re-entered the cab and ordered him to drive. Dreitzer said to Helfant, "Hurry up, we killed the cop. We gave him the works, we found a badge in his pocket." They left Krassner at Dean street and Vanderbilt avenue, where he also abandoned his cab and, entering another one as a passenger, he was driven to a restaurant in Williamsburg. There he met Dreitzer and Helfant in the wash room, saw them cleaning their guns and heard Dreitzer complain that he had blood on his clothes. Two days later he met Dreitzer, Helfant and Fisher together on Norfolk street in Manhattan and, in the presence of all, Helfant made allusions to the murder and warned Krassner to withhold from the police his knowledge of the crime. Stoller, the proprietor of the drug store, recounted the entry of the robbers and some of the details of the affair preceding the shooting and identified Dreitzer and Fisher as the two who had entered his prescription room and engaged in the struggle with the policeman. He saw Dreitzer and another whom he could not identify enter a cab and drive away. Fisher was identified by Mrs. Zinnell who saw him running across the street from the drug store toward the departing taxicab immediately after the shooting. A few seconds later she saw him standing in front of the entrance of the building where she lived. He addressed her and pretended to have been disappointed at his inability to decipher the license number of the taxicab. It left before he had time to board it. Dreitzer was arrested at three o'clock in the afternoon of February 11th. At five minutes past midnight on the morning of the next day, by Fisher's testimony at the trial, Helfant and Fisher left New York for Baltimore. There they remained until February 18th. The next morning both were arrested while guests at an hotel in West Forty-seventh street in New York where neither resided. Helfant lived with his parents in Brooklyn and Fisher for several years had led a transient and nomadic existence on the lower East Side of Manhattan. The testimony of the accomplice, corroborated by other evidence, tends to connect all these defendants with the commission of the crime and, exclusive of any confession, supports the judgment against them.

The vital question in this case relates to the propriety of the trial judge's exercise of discretion in denying motions made by each defendant for a separate trial. Having been jointly indicted, they could be tried separately or jointly in the discretion of the court. (Code Criminal Pro., section 391.) The statute primarily vests discretion in the trial judge and not in us. We will not substitute our discretion for his and we will not interfere unless an abuse has been committed. The mere existence of confessions and the probability of their introduction in evidence do not necessarily require separate trials. (People v.Doran, 246 N.Y. 409.) The proposition is, of course, elementary that the discretion must not be arbitrary and that its exercise is subject to review by a court having jurisdiction to pass upon facts. The test is whether a separate trial will assist or impede the proper administration of justice and secure to the accused the right of a fair trial. The question always presented by such a motion is whether a jury can properly weigh the testimony upon the various issues which may arise. "The decision of the trial court rendered before the trial is dictated by a reasonable anticipation based on the facts then disclosed. The decision of this court rendered upon a review of the trial itself rests upon determination of whether the prophesy has been realized." (People v. Snyder, 246 N.Y. 491, 497.)

Let us apply these tests.

Fisher has never admitted his guilt, but Dreitzer and Helfant, shortly after their arrest, made confessions by which they and Fisher were thoroughly implicated. They withdrew them and attempted to convince the jury that these incriminating statements were untrue and had been inspired solely by fear of police officers and through coercion. They asserted that they had been beaten and threatened and that except for such treatment they would always have maintained their innocence. After the introduction of testimony by prosecution and defense directed to the issue whether their confessions were voluntary, they were admitted in evidence. From such conflicting testimony, the jury could find either that no threats and assaults had been made or, if they had been made, that they did not constitute the motive for the prisoners' concession of guilt. A verdict importing voluntary action by Dreitzer and Helfant could rest upon the fact that their identity had previously been disclosed by Krassner. No promise of immunity had been given, but a reasonable conclusion could follow from all the evidence that, like Krassner, they, too, hoped that, if they told the truth, the consequences to them might be less severe. The issue concerning the voluntary or enforced nature of their confessions was submitted in a charge harmonious with the rule in People v. Doran (supra) andPeople v. Weiner (248 N.Y. 118). Instructions also were given that neither confession, even if voluntary and credible, could properly be considered against any defendant except the one who made it.

A jury's difficulty in discarding such crushing proof of guilt against all three defendants as is displayed by these voluntary confessions by two of them is readily understood. If this judgment rested upon partially forbidden evidence, some of which was admissible only against Dreitzer and some only against Helfant but neither kind admissible against Fisher, the convictions could not stand. The basis for the judgment is, however, totally different. Cast out the confessions and the result would need to be the same. Its foundation, therefore, may be perceived in evidence entirely dissociated from the confessions. On a record abounding less in independent proof of guilt, some perplexity and wavering doubt might arise. Even with the confessions in evidence, the jury under instruction from the court, must have realized that an ultimate estimate of the case leaves only one issue: Who were the three men who entered Stoller's drug store immediately prior to Kelly's death? Those three men, whoever they were, committed the felony in progress when Kelly was slain. Proof of their identity, from sources unrelated to the confessions, is complete. The testimony is reasonable and the jury had no justification for doubting it. Three trials would impede the course of justice. Public rights would be incumbered by delays and expense. The probability of acquittal for any one of these defendants would not be increased. If Fisher were tried alone, the jury could not fairly disregard testimony by Krassner that Fisher was one of the passengers in his taxicab and left it directly in front of the building where the murder occurred, nor testimony by Stoller that he was one of the robbers who entered the store, nor testimony by Mrs. Zinnell that he attempted to escape in Krassner's cab immediately after the killing, nor his own testimony that he departed from the city within a few hours after the arrest of Dreitzer, proof of whose identity would have been admissible on a separate trial of Fisher, and that he returned to New York with Helfant, proof of whose identity would be equally admissible on a separate trial of Fisher, and that under an assumed name he registered with Helfant at an hotel several miles from the locality which he was accustomed to haunt. Suppose Helfant had a separate trial. He, too, would be confronted by Krassner's evidence that he left the cab, entered the store, returned with a gun in his hand, cleaned that gun in the washroom of the restaurant and a few days thereafter, in conversation with Krassner, Fisher and Dreitzer, he referred to the murder. He admitted his departure to Baltimore and his arrest at the New York hotel in company with Fisher. Fisher's father testified that Helfant had spent the time from February 12 to February 18 in his house at Baltimore, How could Dreitzer have fared better if he were sole defendant? Identification by Krassner and Stoller was positive. One swore that he drove him to the scene of the murder and drove him away again, that later he cleaned his gun in the washroom and called attention to blood on his clothes. The other swore that Dreitzer was the man who pointed a revolver at him in the prescription room of the drug store. The problem of the identity of the three murderers could be and was solved to the satisfaction of one jury with the same degree of reasonable certainty as ought to be acceptable to three juries. We cannot force ourselves into such a state of mind as might induce us to indulge in speculation whether one trial instead of three affected the substantial rights of any of these defendants. Each had a fair trial. Justice has been wrought according to law and we know it.

Varying circumstances bear upon the soundness of discretion to be exercised under section 391 of the Code of Criminal Procedure in refusing to grant motions for separate trials. The rule is not doubtful. We have expressed it in the Doran and Snyder cases. Its correct application must rest upon the facts in each case. Prospection by the trial judge is not final. A retrospective view by an appellate court may reveal injustice or impairment of substantial rights unseen at the beginning. In a case where, without the existence of a confession by one defendant, the evidence against another would be too weak to justify a conviction or even where a conviction would be doubtful, our review of the judgment would compel us to conclude that an abuse of discretion had been committed. One who makes no confession must be found guilty, if at all, only on proof independent of a confession by a codefendant. Here we find no reversible error and so the judgment of conviction should be affirmed.