Supreme Court, November, 1921. [Vol. 117. The 70 L. T. Rep. (N. S.) 174, Lord Halsbury said: proceeding established by that order is a peculiar proceeding, intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment, and where, therefore, it is inexpedient to allow a defendant to defend for mere purposes of delay." And in Codd v. Delap, 92 L. T. Rep. (N. S.) 510, Lord James stated: "I wish to add that I think Order 14 is a very useful process indeed, but it has to be used with great care, and must never be used unless it is clear that there is no real substantial question to be tried." Motion denied, with ten dollars costs. THE PEOPLE OF THE STATE OF NEW YORK v. JOSEPH COHEN. (Supreme Court, New York Special Term, November, 1921.) - Criminal procedure murder evidence - weight to be given recantation of witness-newly discovered evidence effect of conviction of recanting witness for perjury-accomplice - necessity of corroboration - conflicting statementswhen court need not hear witnesses orally upon motion for new trial new trial granted because of false testimony of principal witness for prosecution - Code Crim. Pro. § 465 (7). After an important witness for the prosecution in a capital case had recanted, the sentence imposed upon defendant was commuted to imprisonment for life. At the time of the argument of a motion for a new trial on the ground of newly discovered evidence, to wit, that the recanting witness had committed perjury on the trial of defendant, said witness was awaiting trial under an indictment charging him with such perjury. Held, that if the court was satisfied that the recantation of the witness was not of such weight as to require the Misc.] Supreme Court, November, 1921. granting of the motion for a new trial, it was its duty to disregard the verdict of the jury convicting said witness of perjury in the giving of his testimony on the trial of defendant. Upon consideration of the records on the trial of defendant and on the trial for perjury, held, that the testimony given by the recanting witness on the trial of defendant was of such basic importance as to require the court to grant the motion for a new trial, it appearing that the preponderance of evidence, considered apart from the conviction of the recanting witness for perjury, shows that he did commit perjury against those charged with the murder; the perjury need not be established beyond reasonable doubt. Where the record discloses that witnesses have already been examined, the court is not called upon to hear them orally as it might under section 465 (7) of the Code of Criminal Procedure. The possible reversal of the judgment convicting the recanting witness of perjury on the trial of defendant has no bearing upon the motion for a new trial, need not be considered, and the motion will be granted. MOTION for new trial after conviction for murder. Goldstein & Goldstein, by Jonah J. Goldstein, for the application. Charles D. Newton, attorney-general, by Alfred L. Becker, opposed. GAVEGAN, J. This is a motion for a new trial of Joseph Cohen, who was tried in June and July, 1917, for the murder of Barnett Baff on November 24, 1914. He was convicted and sentenced to be executed. He obtained several respites, and after the recantation of Sorro, a witness at his trial, and a very extensive inquiry, conducted before a judge of the Court of General Sessions sitting as a magistrate, his sentence was commuted to life imprisonment. The application for a new trial is made on the well recognized ground of newly discovered evidence, the Supreme Court, November, 1921. [Vol. 117. newly discovered evidence in this case being that of the perjury alleged to have been committed by Sorro in his testimony at the trial of Cohen. On the argument of the motion, which took place while Sorro was awaiting trial under the indictment charging him with such perjury, I announced that decision would be reserved pending the outcome of Sorro's trial. Now that Sorro has been convicted, the People of the State of New York virtually join in the application, the attorney-general consenting that it be granted, but on a novel and impracticable condition. The condition or suggestion is that the court retain jurisdiction to annul its determination if there be an appeal and a reversal of Sorro's conviction. The value of the suggestion, were such a conditional determination possible, depends upon the bearing that a reversal of that conviction would have upon the substantial merits of the application. This will be considered below. Commendable as the action of the attorney-general is in freely admitting that Sorro's testimony was of sufficient importance to require the court to grant Cohen a new trial, so long as it remains legally established that such testimony was false and perjured, the responsibility for the disposition of the application nevertheless falls on the court alone. This would be no light burden in any murder case. But the circumstances leading up to and surrounding the murder of Barnett Baff, which were revealed only after years of inquiry, as well as the place and manner of its perpetration, which displayed the most brutal and atrocious disregard of human life and of the interests of the state in the maintenance of law and order, made the apprehension and conviction of all responsible for it a matter of the gravest public concern. Furthermore, this feeling of responsibility is enhanced by the Misc.] Supreme Court, November, 1921. unsatisfactory showing that Cohen made as a witness for the defense at the trial of himself and others charged with procuring the murder, hereinafter referred to as the Cohen trial. The impression made by his own testimony is so unfavorable as to predispose the court against granting Cohen anything more than he is unquestionably entitled to receive. "Evidence of recantation on the part of a witness. is newly discovered evidence, and therefore of a character which would justify granting a new trial; but it cannot be said, as a matter of law, that a new trial should be granted whenever an important witness against the defendant shall make an affidavit that he committed perjury in his testimony, since there is no form of proof so unreliable as recanting testimony. The question in such 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." People v. Shilitano, 218 N. Y. 161, syllabus. In a sense Sorro's perjury against Cohen has been established in Cohen's favor by the verdict of the jury at Sorro's trial. But I do not consider that verdict as binding on me in this application. Though it may not be lightly disregarded, it would be my duty to disregard it if, from my own investigation, I should become satisfied that the recantation of Sorro was not of such weight as to require me to grant the relief sought. However, the application may not be denied because the evidence is not of such character and weight as to convince this court beyond a reasonable doubt that Sorro had committed perjury at the trial of Cohen. Obviously, where the solemn judgment of a court is attacked and set aside, the burden of proof rests upon him who attacks it, and while, perhaps, he Supreme Court, November, 1921. [Vol. 117. should not be required to prove his case beyond a reasonable doubt, he should prove it by preponderance of evidence." People v. Giordano, 106 Misc. Rep. 235, 238. The jury which convicted Sorro were convinced, and rightly, as I believe, beyond a reasonable doubt that he had committed perjury in his testimony at the Cohen trial. While that was the test to which they had to subject the evidence against Sorro, it does not point out the test to be applied here. I am to consider the evidence of the recantation, including all the circumstances relating to it, those in the case against Cohen, those in the case against Sorro and the surrounding circumstances. Thus the weight to be accorded to the recantation is to be determined. Is it entitled to little or no weight because it is merely a step in a scheme to free Cohen, or for some other reason? Or, in the main, does it represent a sincere effort by Sorro to tell the truth? In his recantation he went over a broad field. It is evident that he might have told the truth in parts, and, for reasons of his own, suppressed it in other parts, as he did in his first statement about the bomb when he shielded the boy who went with him to locate Baff's house. The verdict against Sorro is not binding on me, because what convinced a jury beyond a reasonable doubt might not convince me at all. So, also, if the verdict had been in Sorro's favor, it would not have been binding on me. I am to consider the evidence referred to not to ascertain whether Sorro was proved guilty of the perjury, but merely to determine whether, being governed by the preponderance of the evidence, it would be right or wrong for me to deny a new trial to Cohen. The consideration of this matter divides naturally |