plainant, an unmarried woman of twenty-four, testified that she had two illegitimate children before the birth of the child charged to defendant. There was but one act of intercourse with defendant, apparently on the day she first met him. The defendant denied intercourse with the complainant, but testified that, at her solicitation, he allowed her to remain overnight in his apartments in company with one of her two illegitimate children already born, and she did not contradict him. She knew that he was a married man and that his wife was in a hospital where she died some months later. He remarried, and this complaint was made against him after his remarriage, although there is no evidence of any continued intimacy or even meeting between the date of the one act of intercourse and the remarriage. There was also evidence that the complainant had a former proceeding in the Court of Special Sessions presumably relating to the one or both of the other children, but owing to the improper form of the questions put to complainant, the evidence was excluded. We think in the interests of justice the entire proceeding should be remitted to the court for a new hearing.

The order of filiation of the Court of Special Sessions, Borough of Brooklyn, city of New York, should be reversed, and a new hearing upon the merits ordered.

JENKS, P. J., MILLS, RICH and JAYCOX, JJ., concurred.

Order of filiation of the Court of Special Sessions reversed, and a new hearing upon the merits ordered.

4

SUPREME COURT SPECIAL TERM-
KINGS COUNTY.

September, 1919.

THE PEOPLE v. ALESSANDRIO VOLLERO.

(108 Misc. 636.)

NEW TRIAL-WHEN MOTION FOR, GRANTED INDICTMENT-ACCOMPLICENEWLY DISCOVERED EVIDENCE-CODE CRIM. PRO., § 465.

A separate trial of defendant, indicted with others for murder in the first degree, proceeded upon the theory that certain persons known as "The Navy Street Gang" conspired to kill six of "The Morellos," a gang of Italians, in order to obtain control of certain lines of graft and blackmail supposed to be levied upon "The Morellos," as well as to have revenge against said gang for the murder of a certain individual. While the evidence showed that defendant did not actually participate in the killing of any of three members of the Morello gang and was not present at the commission of the murder, the prosecution claimed that defendant plotted and planned one of them and that he was one of the acknowledged leaders of "The Navy Street Gang." The defendant having been convicted as charged in the indictment, his conviction was affirmed on appeal by a divided court, but without opinion. Daniello, the principal witness for the prosecution, was regarded for all purposes of the trial as an accomplice both in law and in fact. The prosecution contended both upon the trial, in the Court of Appeals, and upon this motion, that there was sufficient corroboration of the testimony of Daniello to sustain the charge of murder made against the defendant. Such corroboration was claimed to rest principally, although not wholly, on the testimony of the witness Mancini. At the time of the trial of this defendant Mancini was under indictment for the murder of Ferrazano, who was one of the six men whose death was the object of the conspiracy. This fact was not brought to the attention of the court or the jury by the prosecuting officer. The indictment against Mancini was what is known as a secret indictment, to which, after the trial and conviction of this defendant, Mancini pleaded guilty to manslaughter in the second degree, and upon the recommendation of the district attorney of Kings county received the same terms and benefit as Daniello had received, a suspended sentence and probation. Evidence reviewed and held, that Mancini was not only an accomplice in fact, if the testimony of Daniello is to be believed, but he was an accomplice in law, and his testimony was wholly ineffective in corroboration of the testimony

given by Daniello, and the court, in the exercise of its judicial discretion, will grant defendant's motion for a new trial under section 465 of the Code of Criminal Procedure on the ground of newly discovered evidence.

MOTION for a new trial in a criminal prosecution for murder in the first degree on the ground of newly discovered evidence.

Edward J. Reilly, for motion.

Harry E. Lewis, District Attorney (Herbert N. Warbasse and Ralph E. Hemstreet of counsel), in opposition.

BENEDICT J.:

The defendant Alessandrio Vollero was convicted by a jury in this court of the crime of murder in the first degree. Upon appeal the Court of Appeals affirmed the conviction by a divided court and without opinion under section 542 of the Code of Criminal Procedure, the section providing that the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. 226 N. Y. 587. The defendant has moved this court at Special Term for a new trial under section 465 of the Code of Criminal Procedure upon the ground of newly discovered evidence. Although the motion was heard on June 7th last, the brief of the district attorney was, with the court's concurrence, not submitted until July 5th, and the great length of the printed record, comprising more than 1,000 pages, and the importance of the questions involved in the motion, both to the defendant and to the public, have precluded an earlier determination. Whatever doubt this court may entertain as to the legality of the original conviction must remain unexpressed in deference to the judgment of the Court of Appeals that any technical errors or defects upon the trial as disclosed by the record did not affect the defendant's substantial rights. The only question which now requires solution is that raised by the

defendant's motion for a new trial upon the grounds which the statute expressly authorizes, as set forth in the section above. referred to. That section, in subdivision 7, provides that the court has power to grant a new trial "Where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict; if such evidence has been discovered since the trial, is not cumulative; and the failure to produce it on the trial was not owing to want of diligence."

The court has approached the consideration of the question involved with full appreciation of the grave responsibility resting upon it and recognizing that its decision upon the question is final and unappealable after affirmance of the original judgment of conviction either by the defendant (see People v. Trezza, 128 N. Y. 529, 8 N. Y. Crim. 291; People v. Mayhew, 151 id. 607; Hebberd v. Loeb, 125 App. Div. 579) or by the People (People v. Beckwith, 42 Hun, 366, 5 N. Y. Crim. 222; People v. Priori, 163 N. Y. 99).

The defendant was indicted with eight other men for the killing of Charles Ubiraco. He demanded and obtained a separate trial. The theory upon which he was tried was that certain persons known as "The Navy Street Gang," in order to obtain control of certain lines of graft and blackmail which were supposed to be levied upon Italians from and by a gang known as "The Morellos," in Harlem, borough of Manhattan, as well as to have revenge against the Morellos for the murder of one Del Guardio, entered into a conspiracy to kill six men belonging to the Morello gang. Three of these six men were actually killed, viz.: Charles Ubriaco and Nicholas Morello on September 7, 1916, and Antonio Ferrazano on October 6, 1916. The three other members of the Morello gang, who it is claimed were to have been killed by the conspirators, escaped. The defendant himself did not actually participate in the killing of any of the three men who were killed, nor was he present at the commission of the murders; but the prosecution

claimed that he plotted and planned the murder of Ubriaco, and that he was one of the acknowledged leaders of "The Navy Street Gang." To quote from the very able and comprehensive brief of the district attorney submitted to the Court of Appeals: "The whole case of the prosecution was based upon the theory that a criminal conspiracy existed to kill these six men," and in order to prove the existence of such conspiracy the People introduced evidence showing at least thirty-six conferences which took place at different places and between different individuals beginning in August, 1916, three weeks before the murders, which took place on the seventh of September, and continuing at intervals down to some time in the winter after Ferrazano had been killed. The proof showed that the defendant and Raffele Daniello, hereinafter referred to, were present at almost all of these conferences, and that one Giovanni or John Mancini, hereafter referred to, was present at at least six conferences, of which three were before and three after the murders of September 7, 1916. The brief of the district attorney before the Court of Appeals contains this statement: "Raffele Daniello, whose complete confession brought about this prosecution, and who was the chief witness for the People, participated in and described on the witness stand a great many different conferences held by various members of the Navy Street Gang, at which the conspiracy to kill the Morellos and obtain possession of their various forms of graft was discussed, and plans were laid for the successful accomplishment of its ultimate purpose." Brief, p. 25. "The prosecution presented its case to the jury upon the theory of a conspiracy, of which the killing of Charles Ubriaco and Nicholas Morello was only a part. * * The existence of the conspiracy was relied upon to justify the admission of a great deal of the proof that was accepted by the court." Id. p. 65. "The theory of the defense was that Daniello, to save himself, related to the jury a true story, into which he falsely wove the name of Vollero." Id. p. 67.

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