People v. . Shilitano

112 N.E. 733, 218 N.Y. 161, 34 N.Y. Crim. 358, 1916 N.Y. LEXIS 1056

• Court: New York Court of Appeals
• Decided: May 9, 1916
• Status: Published

Opinions

Seabury, J.:

The defendant appeals from a judgment entered upon a verdict convicting him of the crime of murder in the first degree and from an order denying a motion for a new trial. In June, 1915, this case was before this court. At that time the alleged newly-discovered evidence was in the form of defectively prepared affidavits and this court suspended its determination until such time as the witnesses making the affidavits referred to could be orally examined and cross-examined. (People v. Shilitano, 215 N. Y. 715.) Since that time evidence has been orally taken and considered by the trial judge. The present appeal, therefore, comes before us upon the original record and the supplemental record upon which the motion for a new trial is based. The deceased, for whose murder the defendant was convicted, was a police officer named Heaney. Almost at the same time that Heaney was shot one Rizzo and another police officer named Teare were shot and killed. It is an established fact that these three men were killed by the same hand. It is necessarily to be inferred, and the inference is not disputed, that the killing of the two police officers took place after the murderer had shot and killed Rizzo, and that these officers of the law were shot and killed to prevent their effecting the arrest of the murderer. It is undisputed, also, that these murders occurred on the 3d of May, 1913, at about 11:45 p. m. in front of No. 239 Mulberry street, in the city of New York. The manner in which these homicides were perpetrated attest the deliberation and premeditation which characterized the act of the actor. The only question in dispute relates to the identity of the murderer. The record gives us but little information as to the antecedents of those engaged in this tragedy. The defendant and Rizzo were young Italians residing in Mulberry street. Rizzo was about twenty-two years of age. The defendant was a young man of about the same age. All that appears in the evidence about his antecedents is that he had a poolroom, was called “ Paper Box Kid,” and was the son of Michael Shilitano, who was the owner of several tenement houses in Mulberry street and the landlord of the premises in front of which the murders were committed. The only motive which could have actuated the murderer in killing Officers Heaney and Teare was to avoid arrest. Whether the defendant had any motive to kill Rizzo does not definitely appear from the proof given upon the trial, although in an affidavit made by. the witness Sellitto, which was offered in evidence for the purpose of contradicting that witness, it is stated that on the night of the murder the defendant’s father was in the poolroom at No. 285 Mulberry street and that Rizzo and Sellitto struck him. In view of testimony to which reference will be made, that immediately before the shooting the father of the defendant gave a revolver to the defendant, this circumstance may afford some justification for an inference of motive. Nellie De Carlo testified that a few minutes before the murder she saw the father of the defndant hand the defendant a revolver. The significance of this testimony is greatly enhanced when we consider that the defendant’s father was not called to the witness stand and made no denial of this inculpating fact. The failure of the defendant to call his father to deny this testimony of Nellie De Carlo justified the jury in drawing the inference that the testimony on this subject was true. We start, therefore, with the fact that Rizzo struck the defendant’s father in the poolroom and that shortly thereafter the defendant’s father is seen handing a revolver to the defendant. We cannot say that this occurrence referred to in the affidavit of Sellitto was not an adequate motive to have impelled the defendant to the commission of the crime. Whether or not this is so, is not of controlling importance as motive is not an essential element of the crime of murder. It is, however, a suspicious circumstance suggestive of a possible motive for the defendant to have killed Rizzo. Alone it would be unworthy of consideration for any purpose. In connection with the other testimony to which reference will be made, it is at least entitled to the weight which I have indicated I attach to it. It is established by the evidence of Peroto who worked in the poolroom, that the defendant, his father and Rizzo were in the poolroom shortly before the shooting. The testimony of Peroto on this subject is in no way impeached or contradicted and is corroborated by other witnesses called by the People. Nellie De Carlo testified that she saw the defendant and later his father come from the direction of the poolroom. Sellitto, Vcrno, Chieffo and Morelli testified to having seen the defendant there. It is significant that in the testimony upon a motion for a new trial, these witnesses do not deny that the defendant, Rizzo and the father of defendant were in the poolroom a short time before the murder occurred. The father of the defendant was not called to deny the presence of these men in the poolroom at the time. This fact may, therefore, be deemed as established beyond doubt. Morelli testified that he saw Rizzo upon the street a short distance from the defendant, that he heard a shot and saw Rizzo fall and that he helped to carry him into the hallway of No. 235 Mulberry street. Morelli was evidently a reluctant witness. He did not testify that he saw the defendant fire the shot, but it is a necessary inference from what he said that the shot was fired by the defendant. Whatever the reason for his apparent reluctance, it is a fair inference from his testimony that if he had been actuated by a desire to make out a case against the defendant he would probably have amplified his testimony. The impression derived from reading his testimony is not that he was attempting to establish a case against the defendant, but rather that he knew more than he told and said what he did with great reluctance. Sellitto testified to having seen the defendant shoot when he was about ten feet away from Rizzo. On his re-direct examination he said that he saw the defendant shooting at the policeman, and saw a revolver in the defendant’s hand. He also testtified that he saw the defendant shoot the second policeman and observed the defendant running away after the shooting. Yerno testified that he saw the defendant draw his revolver and shoot Rizzo. He did not testify to the shooting of the policemaan, explaining that he was afraid the bullets might go wild and strike him and that he ran into the grocery at No. 243. Chieffo testified that he heard a shot and upon turning around saw Rizzo fall to the ground and saw the defendant running away. He also testified that he saw the defendant shoot Officer Heaney. He did not testify to the shooting of Officer Teare although he said that he heard other shots. There was also evidence to show that the bullets that killed Rizzo, Heaney and Teare were 38-calibre bullets and that all came from the same revolver. I have briefly summarized the evidence given on behalf of the People upon the trial to establish the identity of the defendant as the murderer of these three men. The evidence offered on behalf of the defendant upon the trial was directed entirely to an attempt to impeach the credibility of the witnesses called on behalf of the People. It will be necessary to summarize briefly this impcaching testimony. Guiseppe De Carlo, the father of Nellie, and his son William both contradicted Nellie’s statement that she looked out of the window before the shooting. Guiseppe insists that she did not go to the window until after the shooting and that then she went to the window looking out on Prince street and not to the window looking out on Spring street. If she went to the window after the shooting and not before, it is reasonable to suppose that she would go to that window that would afford her a view of the street from whence the noise of the shooting came and not to the window from which the occurrence upon the street would not be visible. In addition to this, the uncontradicted testimony and the photograph of the room show that there was a bed between the Prince street window and the interior of the room. Under those circumstances, especially if the testimony of the father is true that his two boys William and Frank were then in this bed, it would seem to have been impossible for Nellie to have looked out of that window. It is not without significance also that' the son Frank, who is said to have been in this bed at this time, was not called as a witness upon the trial. Nellie Be Carlo testified that when her father learned that she had told the detectives of what she saw on the night of the murder he commanded her to say nothing to any person on the subject. Rosie Mentó, a tenant of the defendant’s father and janitress of one of the houses owned by the defendant’s father, and Judith Amato, a tenant of the defendant’s father, both testified that Nellie volunteered the statement to them that the police wished her to be a witness, but that she knew nothing about the defendant. Pepe testified that he met Nellie a day or two after the shooting and that she told him to tell his nephew Gambardella that she saw nothing of the occurrence. Suspicion was sought to be cast upon Morelli’s testimony because although he was himself arrested on the night of the murder, he did not tell the police about the matter until February, 1914, after he had been locked up in the House of Detention. Morelli’s explanation for his reticence was that he did not want to be held as a witness. Sellito was confronted by an affidavit which he had made at the request of one I of the attorneys for the defendant, in which he stated that the defendant was not the man who had done the shooting. On re-direct examination Sellitto explained that he made the affidavit “ because I Avas afraid.” Sellitto’s wife and mother testified that he had told them before the trial that the police officers had forced him to testify upon a threat that if he did not do so they would send him to prison. Sellitto himself contradicted the testimony of his wife and mother. The witness Verno had previously been convicted of burglary and also made an affidavit for an attorney of the defendant that he did not see either the defendant or Rizzo on the night of the shooting. Vit,".cca, the grocer, who had been a tenant of defendant’s father for over ten years, attempted to contradict the direct testimony of Verno that after the shooting he had come into his grocery store, by saying that he had put the lights in his store out at about 10:15. He admitted, however, that at the time of the shooting three or four persops ran into his store and he was unable to say that Verno was not one of them. Chieffo’s testimony was sought to be weakened by pointing out that although the murder occurred in May, 1913, he did not tell the officers of the law until July 19, 1914, and that at one time he had told them he was not at the scene of the shooting. Chieifo’s explanation was that he was afraid of being sent to the House of Detention and losing his job if he stated the facts. The above is an inadequate but suggestive summary of the conflicting contentions that were submitted to the jury and upon which the jury found the defendant guilty of the crime of murder in its first degree. If there was nothing more in the record than what has been outlined above there can be no doubt that it was sufficient to warrant the verdict of the jury. This evidence presented only a question of fact which was submitted to the jury with great fairness by the trial judge. The case upon this appeal is very much complicated by the fact that the defendant moved for a new trial upon the ground of alleged newly-discovered evidence. This motion was based upon the testimony of Nellie De Carlo, Morelli, Sellitto, Verno and Chieffo, the principal witnesses who testified on behalf of the People at the trial, and in their testimony all of these witnesses except Morelli repudiate the testimony which they gave upon the trial. It will be necessary later to consider their testimony with some particularity and also the testimony which W'as submitted by the People in opposition to the motion. At the outset of our task in considering this alleged newly-discovered evidence it is necessary to determine whether recantation by witnesses called on behalf of the People necessarily entitled the defendant to a new trial. The question must be answered in the negative, otherwise !!'.■' power to grant a convicted defendant a new trial rests not with the court but with the witnesses who testified against him upon the trial. (People v. Tallmadge, 114 Cal. 427.) In the case last cited the court said: “ It cannot be said that, as a matter of law, a new trial should be granted whenever an important witness against the defendant shall make an affidavit that he committed perjury in his testimony; if that were so, justice would be defeated in many grave cases. * * * We have no doubt that a case might arise where an important witness had afterwards testified to having committed perjury, in which this court would hold, looking at the whole case, that a new trial ought to have been granted.” Bearing in mind that the witnesses to crimes of violence are often of a low and degraded character and that after they have given their testimony they are sometimes influenced by bribery and other improper considerations, it is evident that the establishment of a rule which left the power to grant a new trial to a defendant to depend upon recantation by such witnesses would be subversive of the proper administration of justice. I do not wish to be understood as urging that the fact of recantation is not to be considered by the court in weighing the testimony upon - which the defendant was convicted, but I wish to make clear the fact that recantation in and of itself does not necessarily require the court to order a new trial. Such being the case, whether or not a new trial should be granted must depend upon all the circumstances of the case, including the testimony of the witnesses for the People submitted on the motion for a new trial in which these witnesses recant the testimony which they gave upon the trial. In determining the weight to be given to the statements of these witnesses affirming the guilt of the defendant and recanting their testimony, we must endeavor to discern the motives which actuated them. If upon examination it should appear that their testimony upon the trial was given without any motive to falsify and that their statements recanting their testimony were prompted by corrupt or unworthy motives, but little weight should be given to the recanting statements. There is no form of proof so unreliable as recanting testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of the criminal law know well its untrustworthy character. It is suggested by the learned assistant district attorney that evidence of recantation upon the part of a witness is not newly-discovered evidence, but merely evidence tending to impeach or discredit a witness, and, therefore, not of the character which would justify granting a new trial, as the rules governing such motions have been declared by this court in People v. Priori (164 N. Y. 459) ; People v. Eng Hing & Lee Dock, 212 N. Y. 373) ; People v. Becker (215 N. Y. 126). In this contention the learned counsel for the People is in error. Evidence of recantation upon the part of a witness is not merely evidence which tends to impeach or discredit a witness. Its character is much more fundamental. If the recantation be true it may in certain cases destroy the basis upon which the judgment of conviction rests and under the ample power vested in this court in reviewing a judgment of conviction in a capital case might be sufficient of itself to justify the granting of a new trial. Nor can it properly be said_ that because the witness who now recants his testimony gave evidence upon the trial, the fact that he now repudiates his former testimony precludes proof of this fact from being regarded as newly-discovered evidence. It is not that the witness- has been newly discovered, but the fact that he has recanted his testimony since the trial which makes that evidence newly discovered. The question, therefore, which presents the most perplexing issue in this case is whether the evidence of recantation which is presented is of such a character and weight as to justify this court in setting aside the judgment entered upon the verdict of the jury. It is necessary to analyze briefly the newly-discovered evidence presented upon the motion for a new trial. The result of this analysis will be found to bear out the view previously expressed that recanting testimony is untrustworthy evidence. The affidavits were not made until a year after the trial. Nellie De Carlo’s testimony is an extraordinary production. In it she states that she did not see the shooting and was asleep in bed at the time. In addition to this she says that the two detectives frightened her into giving the testimony which they desired. According to her story they slapped her and took her to a room in the grocery store and slapped her again. She asserts that at police headquarters “ I began crying and they told me to sit in a chair. The chair suddenly shot up and I fell out. I fell unconscious on the floor. When I came to I was sore and bruised all over my body, as if I had been kicked.” The detectives whom she accused testified denying categorically every charge which she made against them, and the police inspector who was present at the police headquarters also testified contradicting her statements. In addition to this, Vitacca, the grocer, testifies denying that the police officers struck her in his store as she now asserts. In addition to the denials of her extraordinary statements by the police officers and officials and by Vitacca, Mrs. Rose gave testimony which is undenied, in which she tells of a significant conversation with Nellie only two days after the murder. Mrs. Rose testifies that in May, 1913, she was in charge of a department in a store in which Nellie worked as an errand girl. She says that on May 5th, 1913, she noticed Nellie crying, and asked her what she was crying about, “ and she said that she had seen a shooting on Saturday night, May 3d, 1913, in Mulberry street; that she had seen a man named Shilitano hand a gun to his son and then had seen the son shoot down a police officer. That she had also seen a large pool of blood and that she would never forget the occurrence.” Inasmuch as the defense seeks to impeach Nellie’s testimony and claims that she never saw the shooting the testimony of Mrs. Rose is competent as tending .to sub stantiate the testimony given by Nellie at the trial. (People v. Katz, 209 N. Y. 311.) There is nothing to cast suspicion upon this testimony of Mrs. Rose. It is not denied by Nellie. It seems to us reasonable and probable. Bearing in mind that as Nellie testified upon the trial her father had commanded her to say nothing as to what she had seen and that her father and brother who are friends and tenants of the defendant’s father both testified in contradiction of Nellie’s testimony upon the trial and that the jury did not credit their testimony, we do not regard Nellie’s belated affidavit and testimony as entitled to credence. The story she tells puts too great a strain upon our credulity and the manner in which she tells it arouses suspicion, which, when the other circumstances are considered, such as the statement she made to Mrs. Rose shortly after the murder, ripens into a conviction that her recanting testimony is false. The testimony of Morelli submitted upon the motion for a new trial does not contradict the testimony which he gave upon the trial. All that it is sought to prove by his testimony is that after the shooting and before the trial when this witness was brought to the district attorney’s office the assistant district attorney asked him how he knew Shilitano had done the shooting and he said he did not know it, and that subsequently a detective had tried to get him to say that Shilitáno had done the shooting. This testimony does not contradict the testimony which he gave upon the trial. Indeed it is significant that in his testimony upon the motion for a new trial he repeats that on the night of the murder he heard the shots and saw Rizzo fall, and that he saw Heaney’s body lying on the street. He also declares in this affidavit that shortly before the shooting he saw the defendant standing on the street near No. 241 Mulberry street. In this affidavit Morelli gives as the reason for making it that he “ felt sorry for the Kid (the defendant), but I have been more afraid of the law and no influence has been brought to bear on me except my own decision to tell the truth, by John Shilitano or any one else.” Notwithstanding the solicitude for the defendant and the cause of truth it is worthy of note that he does not disaffirm the testimony which he gave upon the trial, which while not identifying the defendant as the murderer in express language did so by necessary implication. The testimony of Morelli does not contain a recantation of his testimony given upon the trial. On the contrary, partly in express terms and partly by implication he reaffirms the substance of the testimony he gave upon the trial. The testimony of Sellitto on the motion for a new trial is the effect (1) that he did not see the-defendant on the night of the killing, and (2) that the detectives influenced him to testify upon the trial. In so far as his testimony denies that he saw the defendant on the night of the shooting it recants the testimony which he gave upon the trial. In his testimony he reiterates that he saw Rizzo shot and says that he saw a man shoot him and two policemen. On the trial he clearly identified the- defendant as the person who did the shooting. On this subject he merely says in his recanting affidavit: “ This man I saw was about forty years old, heavy-set, and wearing dark clothes. I am positive it was not Oresto Shilitano, the Paper-box Kid, whom I had known by sight for some time.” He amplified this statement in his testimony. Verno testified that he knew nothing of the shooting until the next afternoon and asserts that he was led to testify to the contrary by the detectives. This testimony recants the testimony which the witness gave upon the trial, and states that he had talked the case over “ repeatedly ” with the defendant’s brother. In his affidavit he recites the following reasons as operating to induce him to make his recanting affidavit: “ I was also somewhat frightened when I thought what might happen to me if Oresto (the defendant) went to the chair. No one made any threats to me, but I knew he had many friends, and they knew I had sworn to a lie, and I was afraid of what they might do. It was not only that I was afraid of this, but my conscience troubled me very much.” In view of the other proof offered in the case as to the efforts of the defendant’s friends to induce the witnesses to maintain a favorable attitude toward the defendant, this state-0 ment is illuminating. According to his own affidavit he recanted his testimony not only because of the promptings of his conscience but because “ I was afraid of what they (defendant’s friends) might do.” The reason assigned bears out the contention made by the People upon the trial, that the defendant’s, friends had terrorized the witnesses for the People. In so far as, the recanting affidavits and testimony of Sellitto and Verno accuse the police officers of having improperly influenced them1 to testify upon the trial these statements are denied by the police officers whom these witnesses accuse. The affidavit and testimony of Chieffo submitted upon the motion for a new trial recants the testimony he gave upon the trial. Since he made the recanting affidavits and before the motion was decided he made another affidavit recanting his recantation. These recanting statements presented a question primarily for the trial judge who had seen and heard the witnesses upon the trial, to determine whether they were of such weight as to justify him in setting aside the verdict. His original order denying the motion certifies that he gave to the questions raised by these affidavits “ due deliberation, and earnest consideration and reflection thereon.” The decision that he rendered discloses that he did not dispose of the matter in any merely formal manner, but that he gave in that careful consideration which the gravity of the issue presented to him for determination required him to bestow upon it. The opinion which the learned trial judge rendered upon the motion for a new trial shows the careful consideration which he gave to the important questions pending before him. He approached the consideration of these issues in a spirit of patience and industry, with an eye single to doing justice between the People of the state upon one side and the defendant at the bar on the other. In his opinion denying the motion for a new trial the trial judge discloses the effort that was made to explore and sift the reasons and motives actuating the witnesses., He concludes that the testimony of Nellie De Carlo as given upon the trial was in substance true. He finds “ that she was treated by all who- were connected with the police department with kindness, and no suggestion was made to her by any one'that she was to do or say anything on the trial that was false, unworthy or improper.”

In relation to the testimony of Verno, Sellitto, Chieffo and Morelli the learned trial judge said: “ During the trial I was impressed that all of these witnesses were laboring under great fear lest they would incur, in giving testimony, the hostility of the neighbors of the defendant, whose father seems to have been considered a wealthy and powerful man in the Italian settlement in which they all resided.” The trial judge in his opinion also pointed out “ that prior to the trial and since the trial vigorous efforts were unremittingly prosecuted by Johnny Shilitano (defendant’s brother) to poison the wells of justice and that sinister means were used to involve these ignorant men in palpable contradiction and in that way to assist the defendant. That rewards were held out to them and threats made to do them bodily harm if they did not make statements which it was desired that they should make.” Great weight should attach to the opinion of the trial judge upon a motion of this character. His position upon the trial gave him all the opportunities for forming an opinion of the credibility of the Avitnesses that the jurors possessed. In addition to this he had before him the conflicting affidavits and testimony presented upon the motion for a new trial. He used his experienced judgment and gave the matter his “earnest consideration ” and concluded that the verdict of the jury was right and ought to be permitted to stand. Under the circumstances I think that this court should not interefere with the judgment. In view of the character of the evidence offered to impeach the judgment and the decision of the trial judge denying the motion for a new trial the case fails to present a situation in which this court should substitute its judgment for that of the jury and the trial judge. No legal ground for granting a new trial is presented. As I view the case, my conviction is in accord with that expressed by the jury. The examination of the record has carried to my mind a strong conviction of the guilt of the defendant. The bullets found in the bodies of the three murdered men were of the same calibre, and were so marked as to leave no doubt that they came from the same revolver. The defendant, his father and Rizzo had all been in the poolroom a short time before the shooting. It is inferable from the evidence that Rizzo struck the father of the defendant. Although one of the witnesses testified that she saw the defendant’s father hand the defendant a revolver a few minutes before the shooting, the defendant’s father made no denial of this testimony. The fact that the witness who testified to seeing the father give the revolver to the defendant, shortly after the occurrence, made a statement consistent with her testimony to a disinterested person, is itself corroboration of her testimony. The fact that the defendant was at the place of the shooting is re-affirmed by some of the witnesses whose affidavits and testimony the defendant submits upon the motion for a new trial. Another circumstance persuasive of the defendant’s guilt is the effort made by those" acting on behalf of the defendant to influence and even to intimidate those who they believe could testify against the defendant. The inference of guilt is strengthened also by the fact that after the murder the defendant remained in hiding and could not be found although all the known police methods for locating him were employed. The circumstance that these friends and agents of the defendant presented in advance of the trial affidavits from two persons who afterwards testified against the defendant that they were not at the scene of the shooting and knew nothing of it, instead of strengthening the defendant’s case seem to me to cast suspicion upon it. If these witnesses knew nothing of the facts it is a little strange, that they should have been asked to sign affidavits certifying to their lack of knowledge. The fact that great efforts were exerted to procure the affidavits suggests the inference that perhaps those obtaining them had reason to believe that those witnesses knew more than it was desired that they should disclose. Every witness called by the People was or had been a tenant, employee or friend of the defendant’s father and some of them were shown to have been paid money by the defendant’s mother. I am unable to come to any other conclusion than that these circumstances, in addition to the direct testimony which the jury believed to be credible, established the guilt of the defendant. The conviction to which the mind is necessarily led by this direct and circumstantial evidence is in no way shaken by the suspicious recanting statements made by some of the witnesses. Several alleged errors are urged upon our attention by the appellant, some of which are of such an unsubstantial character as to be unworthy of discussion. The others it will he necessary for us briefly to discuss. Upon the cross-examination of Sellitto it was shown that when he was taken to the Tombs on October 29th, 1913, to see if he could identify the murderer from among several men who were there lined up in front of him, he did not point out the defendant. There was also an attempt to prove that a police officer endeavored to induce him to point out the defendant. To meet this testimony Sellitto upon re-direct was asked by the People to give a conversation he had with the brother of the defendant and one of the defendant’s attorneys. In answer *to this question he said that the defendant’s brother and his attorney had called on him in Tarrytown and told him “ the only thing we want you to do is not to place your hand on the defendant.” Upon the cross-examination of Verno an affidavit made by him was offered in evidence upon the trial to the effect that he heard nothing of the shooting until the next day. Upon re-direct he was. asked for the conversation he had with the brother of the dc-' fendant before he made this affidavit and he said that the defendant’s brother said to him: “ In case they call you don’t say nothing.” It is earnestly urged that this testimony given upon re-direct examination was improperly received in evidence upon the trial. In view of the cross-examination to which each of these witnesses were subjected the court committed no error in allowing the questions upon re-direct examination to be answered. From the testimony given by the witnesses the jury was justified in inferring that the defendant’s brother and the defendant’s attorney in persuading Sellitto not to identify the defendant and in inducing Ver no to say that he knew nothing of the occurrence, were acting on behalf of the defendant. The action of the defendant’s brother and his attorney in dealing with the witnesses is indicative of an effort to coerce witnesses and suppress evidence against the defendant. That such efforts may have some tendency tq prove a consciousness of guilt seems to be a fair deduction and, therefore, they were properly received in evidence. (Nowack v. Met. St. Ry. Co., 166 N. Y. 433, 443; Lacs v. Everard’s Breweries, 170 N. Y. 444; Hoag v. Wright, 174 N. Y. 36, 46.) It is urged that the court received in evidence a conversation between the witness Morelli and the mother of the deceased Rizzo and that this was error. It is a sufficient answer to this objection to point out that the witness Morelli was not permitted to testify to süch a conversaion. The court did permit him to say that he had had a conversation with Mrs. Rizzo but the conversation itself was not proved. In view of the fact that upon cross-examination it was brought out that Morelli had talked with some one it was proper for the People to show with whom he talked. It is further, urged that it was error for the court to permit an assistant district attorney to testify that the witness Angelina Sellito, the wife of the witness Sellitto who testified in behalf of the People, had told him that she had received money from the defendant’s mother. Angelina Sellitto had testified in contradiction of the testimony of her husband, and the admission which she made as to money she had received from the mother of the defendant had a direct bearing upon the issue as to whether her testimony had been prompted by corrupt means. The evidence given upon the trial was ample to justify the verdict of "the jury. The evidence offered in support of the motion for a new trial is unworthy of belief, and obviously comes from a polluted source. There were no errors of law which would justify granting a new trial. Nothwithstanding the contradictions and recantations of some of the witnesses, the guilt of the defendant is plainly evident. I also desire to express my entire concurrence in the opinion of Judge Cardozo. Under the circumstances disclosed I vote in favor of affirming the judgment of conviction.