months, and, as appeared from the testimony of his mother and wife, he claimed that attempts were being made to coerce him to testify against and identify the defendant.

So.

rogated, but on the latter date a detective picked him up, and he was then coerced to say he saw the shooting and consented to do He was then taken to the office of the district attorney, where he made and signed a statement repeating what he said to the detective, and was then taken to the House of Detention, where he remained until after the trial. He stated that his testimony on the trial as to the shooting was not true, that the knowledge that he had sworn an innocent man's life away made him decide to do what he could to take it back, and the statement was made of his own free will, and he made the same uninfluenced by any person and assumed full responsibility for it, as well as any result arising from having made the same. The affidavit made by Chieffo on April 2, 1915, followed an interview had by him with the assistant district attorney, immediately following a publication of his veri

Upon the trial the witness Morelli testified that he saw the defendant in the café off the poolroom, and he also saw Rizzo in the saloon next to the poolroom; afterwards he saw the defendant and Rizzo on the street: they were about 20 to 25 feet apart, and he (Morelli) was then facing toward Spring street; that he heard a pistol shot and did not know where the defendant was at the time, but he saw the defendant about five minutes before he heard the shot in front of No. 241 Mulberry street. At the time the shot was fired Rizzo was in front of No. 239 Mulberry street, and after the shot was fired Rizzo fell to the ground and the witness helped to carry him into the hall of the building at No. 235 Mulberry street. In his statement to the World and affidavit follow-fied statement appearing in the World, and ing, as well as upon the investigation, he stated he heard two shots fired; that when Rizzo fell after the first shot, he (Morelli) then ran towards the saloon, stopped in front of the poolroom, and not hearing any more shots fired went back and found the bodies of Rizzo and Officer Heaney on the street about 10 yards apart. This witness at all times insisted that he did not see the defendant fire the shots and did not know who did the shooting. He was arrested, taken to headquarters and questioned that night, and later was examined on various occasions by the prosecuting officers.

Frank Chieffo, upon the trial, testified that he was about opposite No. 239 Mulberry street when he heard a shot, turned and saw Rizzo falling to the ground and defendant running up the street, saw Officer Heaney run across the street, heard another shot, saw a flash from the direction of defend ant where he was close to the building about 3 feet from Heaney, saw Heaney fall, and as he walked up street heard one or more shots. March 11, 1915, Chieffo, in substance, in a verified statement made at the World office, stated that on the night of the murder he was at a club of which he was a member at 324 East Fourteenth street, and remained there until after 11 o'clock, when he started for his home, No. 242 Mott street. He described the route he traveled on his way home, which did not include Mulberry street. He said he reached home a little before 12 o'clock, immediately went to bed and asleep, and did not learn of the murder until the following morning; that about the latter part of October he was taken to the office of the district attorney, and before that time he had not discussed the murder with any person, not even with the members of his family, except what he read in the papers. At the district attorney's office he told the assistant he did not know anything about the murder. He was then permitted to depart. Until February 3d he was not again inter

was used in opposition to the application for a new trial upon the first hearing. In that affidavit he repeated the substance of the testimony given by him on the trial and deposed that all his testimony given upon the trial was true, and that the statement made by him at the office of the World was not true, but was made because of fear of the brother of defendant and of friends of the defendant. Upon the investigation he adhered to the facts stated in the last affidavit.

In the foregoing summary I have omitted a reference to the details of statements, affidavits, and oral testimony bearing upon the question of the exercise of an improper influence on the witnesses due to the conclusion reached by me in this extraordinary case. On behalf of the defendant it is argued that without the testimony of the five witnesses the record in this case does not disclose sufficient evidence tending to connect the defendant with the crime for which he has been convicted; that threats, coercion, and confinement in the House of Detention prompted the five witnesses to give false testimony against the defendant. Upon the part of the people it is asserted that relatives of defendant by threats and improper means coerced the witnesses to make statements and affidavits tending to show that they had testified falsely on the trial.

Of the five witnesses who testified against the defendant on the trial, all of them except Morelli (who did not undertake to identify the defendant and now emphatically states that the man who did the shooting was a man other than defendant), have testified or deposed that upon the trial of the defendant they testified falsely, and that they were guilty of perjury. They sought to palliate their crimes by claiming they were induced to commit perjury, thus charging other individuals with the crime of subornation of perjury. On the other hand, it is asserted by the people that the witnesses testified truthfully on the trial; and since then they

have committed the crime of perjury and were induced to commit that crime by other individuals, who are thus charged with the crime of subornation of perjury. In the meantime the defendant is confined in the death house under sentence of death, and we are asked to determine at what particular time the witnesses referred to told the truth and incidentally what person or persons, if any, have been guilty of subornation of perjury.

question was accused of having shot Rizzo; that Loretto and Nellie De Carlo were good friends. It should also be observed that the witnesses in question did not testify upon the trial as to the presence of any one of the other witnesses in Mulberry street at the time the murder was committed, so that the evidence of their presence there is dependent solely upon the testimony they separately gave relating to their movements that night. The defendant was presumed to be innocent. It was incumbent upon the people to establish his guilt beyond a reasonable doubt. That burden the prosecution assumed by the testimony of the witnesses named; the jury be

The record in this case does not disclose that any acquaintance or relation existed between the defendant and Rizzo, or any reason or motive inducing the defendant to kill Rizzo. While motive is not an essential in-lieved their evidence and convicted the degredient of the crime of murder in the first or second degrees, "intent" is essential to a conviction in either degree. As bearing upon the question of intent, motive or absence of motive may present considerations of the utmost importance; consequently the absence of evidence showing any relations existing between the accused and Rizzo was a pertinent and proper subject to be considered by a jury upon the question of the probability or improbability of the guilt of the defendant, especially so in a case where the question of identity is at issue. People v. Dinser, 192 N. Y. 80, 84 N. E. 577.

fendant. The jurors were afforded an opportunity to look upon the witnesses and hear their testimony. What court or judge can fathom the minds of the jurors or speculate upon what basis they formed a judgment? What individual can say that the jurors did not reject the testimony of four of the witnesses and believe the story told by the girl Nellie De Carlo alone, or that the testimony of all the witnesses or only a portion of them was sufficient to convict the defendant? The case is now surrounded with perjury and that confessedly admitted by four of the five witnesses (the one remaining not having idenTrue, the defendant was not tried for the tified the defendant as the guilty party), and murder of Rizzo; still it is asserted by the to the crime of perjury is added charges of people that the three men were murdered by subornation of perjury by both sides. There one and the same person; that the murderer is no escape from this conclusion. How, of Rizzo killed Officer Heaney to effect his then, will the ends of justice be promoted? escape from arrest for the murder of Rizzo. If the retraction of testimony be true and Such facts if established would tend to dis- the judgment against the defendant is enclose a motive for the murder of Officer forced he will suffer the penalty of death for Heaney, but the killing of Rizzo and of the a crime for which he has not been legally officer by the same person and the identity convicted. If it be said that to permit witof the defendant as the murderer of Rizzo nesses, by statements under oath after a was not admitted. The identity of the mur-trial had, to confess their guilt of perjury derer of Rizzo was a material fact in the case; thus the relations between Rizzo and defendant were an important and pertinent subject for consideration.

The record does not disclose evidence bearing upon the antecedents of the defendant. Upon the hearing of the application for a new trial, a witness called by the people, one Laboria Gambardella, a detective sergeant at the time of the homicide, then active in the case on behalf of the people, but no longer a member of the police department, testified to the effect that he lived in the neighborhood of Mulberry street at one time; that he was well acquainted with Rizzo and defendant and had seen them together and they seemed to be friends; that he never heard of any difference between them or between Rizzo and defendant's father; that Rizzo was a strike breaker and before he entered that employment he was a good boy, but soon after he was so employed he shot a man, ran into the subway and attempted to escape, but was caught; that a short time before the crime in question Rizzo shot one Loretto, and Loretto after the crime in

and thereby enable one convicted of a crime to secure a new trial would establish a precedent which would enable them to trifle with the administration of justice, the fact remains that the Penal Law makes ample provision for such cases, and experience in that direction is apt to prove sad and expensive. In this case the witnesses are the individuals who in a major degree are trifling with the court; they are the parties who charge subornation of perjury, and they should be brought face to face with the defendant and the parties accused before the tribunal so well adapted to determine truth, the same tribunal the defendant was tried before-a jury-where all parties interested may be heard and their credibility weighed. Truth will ultimately prevail, and any individual guilty of a crime will finally answer for the same. The course suggested will promote justice and prove more satisfactory than to have this court enforce the death penalty in this case where the evidence is so conflicting that examination of the same must result in a variance of conclusion, or at least in the minds of some the existence of a rea

court of law that would permit a death sentence to be imposed? Such a determination would be unprecedented in this state. If the contention of the assistant district attorney be correct, this court was powerless to sus

stance and order a further hearing upon the application for a new trial. The fact that we assumed jurisdiction of the appeal from the order denying an application for the new trial and required further investigation to be made by oral examination of the afliants to enable us to reach a determination is evidence of our conclusion that we had power to review any order made on the application adverse to the defendant, and that fact is em

sonable doubt as to the particular time when uncontradicted, if they were true, is there a the witnesses so susceptible to a willingness to commit perjury told the truth. This case is unique in its surroundings. Did it present a situation where beyond "reasonable doubt" bad faith was apparent, or where the evidence exclusive of that adduced from wit-pend the hearing of the appeal in the first innesses confessing perjury was sufficient to sustain a conviction, a different result than the one I recommend would no doubt follow. Assume that the record in this case was in substance presented upon an application for a new trial in a civil action wherein the plaintiff had recovered a substantial verdict; would any trial justice permit a verdict to stand or hesitate to grant a new trial and send the evidence to the district attorney? Orders granting new trials upon less incrim-phasized when such determination was reninating facts have been made and sustained. Chapman v. D., L. & W. R. R. Co., 102 App. Div. 176, 92 N. Y. Supp. 304; O'Hara v. B. H. R. R. Co., 102 App. Div. 398, 92 N. Y. Supp. 777; Hammond v. D., L. & W. R. R. Co., 140 App. Div. 810, 126 N. Y. Supp. 141; Shanahan v. Feltman, 154 App. Div. 809, 139 N. Y. Supp. 409. But few decisions are to be found in criminal cases, especially in this state; the following cases, however, sustain the principle which in my opinion should pre-cretion has been abused, thus conceding our vail. State v. Moberly, 121 Mo. 604, 26 S. W. 364; Dennis v. State, 103 Ind. 142, 2 N. E. 349; Mann v. State, 44 Tex. 642; Bates v. State (Miss.) 32 South. 915; People v. Fridy, 83 Hun, 240, 31 N. Y. Supp. 399.

The assistant district attorney upon the argument of the appeals, with his usual fairness in the presentation of cases in this court, in his brief states:

"It might be conceded for argument's sake that defendant upon the proceedings now under review successfully impeached every one of the people's important witnesses, but even if he did the fact would avail him nothing. Malone, J., was not only justified but required to deny the motion under the Becker opinion, supra."

dered after a full consideration of the brief of the assistant district attorney on the first hearing wherein is contained the same point he now urges and which he supported by argument based upon the Cases of Priori, Patrick, and Eng Hing.

In the same brief, counsel argues that the decision of a motion for a new trial involves the exercise of discretion; that this court will not interfere unless it finds that the dis

authority to review the discretion of the court below. Lord Mansfield said: "Discre tion when applied to a court of justice means sound discretion guided by law." The dis cretion to be exercised by a court or judge must ever be applied to promote the development of truth and a promotion of substantial justice. When we speak of the impeachment of a witness, we refer usually to the development of facts tending to affect his credibility or to show his character for truthfulness is bad. The testimony of a majority of people called as witnesses is sought to be impeached or discredited not only by cross-examination, but frequently by the production of witnesses who are called to testify to a different state of facts. When we consider an appeal from an order denying a new trial in a case like

For the purposes of discussion, I do not assume that counsel by the use of the language quoted intended to concede that the record discloses that the defendant should neces- the one at bar, we frequently find affidavits sarily succeed on this appeal. His position, as I understand it, is that the new evidence, even if uncontradicted, was inadequate to bring about a new trial; that it produced no new facts and its sole tendency was to impeach or discredit the people's trial witnesses. In support of the proposition he cites People v. Priori, 164 N. Y. 459, 58 N. E. 668; People v. Patrick, 182 N. Y. 131, 74 N. E. 843; People v. Eng Hing, 212 N. Y. 373, 106 N. E. 96; People v. Becker, 215 N. Y. 126, 109 N. E. 127; People v. Schmidt, 216 N. Y. 324, 110 N. E. 945.

or depositions of parties or individuals other than the witnesses attacking the truthfulness of witnesses upon a trial by reason of previous or subsequent statements attributed to them inconsistent with statements they made on the trial. It is of that nature of so-called impeachment we have heretofore spoken of, except in the Cases of Eng Hing and Becker, which within our reasoning are clearly distinguishable from the case at bar. In the Eng Hing Case two women, Florence Hong and Grace Mack, were sworn as witnesses In behalf of the people. The nature of the proThe assistant district attorney misappre- ceeding is described in the opinion of this hends the effect of the decisions made by this court written by Judge Werner and need not court. The statements and affidavits of the be referred to here. The two witnesses namwitnesses were made subsequent to the trial ed did not recant their testimony given on and conviction of the defendant; consequently the trial, but, on the contrary, contradicted they did not exist and were not discoverable by affidavit the alleged impeachment of their at the time of the trial. If the facts were evidence. In the Becker Case one Marshall,

ES OF BOND-ACTION FOR INSTALLMENTS. single cause of action, but the remedy for one The successive breaches of a bond create a breach may slip by without prejudice to the remedy for the others; the rule against splitting cause of action not meaning that because time the remedy for later installments is also remedy for one installment is lost by lapse of lost.

an important witness for the people (as stat-2. LIMITATION OF ACTIONS 51(2)-BREACHed in the opinion of Chief Judge Bartlett), while intoxicated in the city of Philadelphia signed and verified a statement somewhat inconsistent with his testimony on the trial. Subsequently he repudiated the statement as being different from what he understood it to be, and this court after a review of the entire evidence, sustained the decision below denying a motion for a new trial.

[Ed. Note.-For other cases, see Limitation of Actions. Cent. Dig. §§ 281, 283, 284; Dec. Dig. 51(2).]

Appeal from Supreme Court, Appellate Division, First Department.

Action by George E. Green, as State Commissioner of Excise, against Henry F. Petersen, impleaded with the Lincoln Trust Company. From a judgment of the Appellate Division, affirming a judgment of the Trial Term of the Supreme Court on a verdict directed in favor of the plaintiff, defendant Petersen appeals. Affirmed.

In the case at bar the witnesses retracted under oath the material facts testified to by them on the trial. Such disavowal or recantation is not "impeachment" as contemplated in the statute or by our decisions. Where witnesses under oath retract evidence given by them upon a trial their recantation and prior testimony are subject to a careful scrutiny, and if doubt be entertained as to the particular time the witnesses were truthful the doubt should, especially in a capital case, be resolved in favor of a defendant. The application for a new trial in this case is out of the ordinary. In view of the conflict of evidence, the danger of a greater evil should be avoided and the defendant should have CARDOZO, J. [1] The action is on a bond the opportunity of meeting the question of filed under the Liquor Tax Law with the his guilt before a jury qualified by observa-state commissioner of excise. Liquor Tax tion and scrutiny to determine the truth or Law, § 16; Consol. Laws, c. 34. The confalsity of the charge against him. dition is that:

I recommend a reversal of the judgment and order, and that a new trial be ordered.

Paris S. Russell, of New York City, for appellant. Louis M. King, of Schenectady, for respondent.

"The said principal, while the business, for which said liquor tax certificate is given, shall be carried on, * will not violate any of the provisions of the Liquor Tax Law, or any act amendatory thereof, or supHO-plementary thereto."

COLLIN and CUDDEBACK, JJ., concur
with SEABURY and CARDOZO, .JJ.
GAN, J., reads dissenting opinion, and HIS-
COCK, J., concurs. WILLARD BARTLETT,
C. J., taking no part.

The charge is that the law was violated by the sale of liquor on Sunday, January 18, 1914, and again on Sunday, September 20th, and Sunday, September 27th, of the same

Judgment of conviction and order denying year. This action was begun on December motion for a new trial affirmed.

(218 N. Y. 280)

7, 1914. The statute requires that such an action be commenced "within nine months after the cause of action has accrued." Liquor Tax Law, § 16, as amended by L.

GREEN, State Com'r of Excise, v. PETER- 1911, c. 223. December 7, 1914, is more than

SEN et al.

(Court of Appeals of New York. May 12, 1916.) 1. INTOXICATING LIQUORS 88(1)-BOND ACTION FOR BREACH-SINGLE CAUSE OF AC

TION.

A bond filed with the state commissioner of excise under the Liquor Tax Law (Consol. Laws, c. 34) § 16, conditioned against violations of the Liquor Tax Law, was violated by the sale of liquor on Sunday, January 18, 1914, and on Sunday, September 20th, and Sunday, September 27th of the same year, and action thereon, required by section 16, as amended by Laws 1911, c. 223, to be commenced within nine months after the cause of action has accrued, was begun December 7, 1914, after the cause of action for the first breach had been barred. Held, that the bond was intended as a continuing security, that each breach as it was committed gave rise to a separate cause of action, and that the loss of the remedy for one breach had no effect upon the remedy for the other breaches, so that the remedy for the lat

ter breaches survived.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 91; Dec. Dig. 88(1).]

nine months after January 18, 1914. but less than nine months after September 20th and 27th. The cause of action for the first breach

has thus been barred. The question is whether the remedy for later breaches had survived.

We think that the bond was intended as a continuing security; that each breach as it was committed gave rise to a separate cause of action; and that the loss through lapse of time of the remedy for one wrong has therefore no effect upon the remedy for the others. Austin v. Moore, 7 Metc. (Mass.) 116; McKim v. Glover, 161 Mass. 418, 421, 37 N. E. 443; Thayer v. Keyes, 136 Mass. 104; Deposit Bank of Midway's Assignee v. Hearne, 104 Ky. 819, 48 S. W. 160. The defendant refers to cases in which it has been held that, however numerous the breaches assigned in the complaint, the cause of action on such a bond is single and entire. Lyman v. Broadway Garden Hotel Co., 33

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.-For other cases, see Theaters and * Shows, Cent. Dig. § 3; Dec. Dig. 3.] 2. THEATERS AND SHOWS 3

COLLATERAL ATTACK-SPECIAL OFFICERS. picture theater or an open air motion picIn such case the judgment of the commis-ture theater, the commissioner shall request the sioner of licenses is final, unless there was some error of law in his proceedings.

ply, gas and electricity, the department of fire department, the department of water supough in which such theater is located, to inspect health, and the bureau of buildings of the borthe same, and the said departments and the appropriate bureau of buildings shall, within ten days after receiving such requests, file in the department of licenses detailed written reports, which shall include a statement of any violation of law, ordinance, rule or regulation relat

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes