The contention of the defendant upon this motion is that since the

trial of this case the defendant has discovered certain facts in regard to the witness Giovanni Mancini which, had they been known at the time of the trial and had the court and jury been put in possession of them, would have changed the result of the trial. Mancini was permitted to testify and did testify in support of the story told by Raffele Daniello regarding the conspiracy in which it was claimed the defendant was involved. As will be shown, the testimony of Mancini was submitted to the jury for the purpose of corroborating Daniello and under instructions to the jury to determine upon the evidence in the case whether Mancini was or was not an accomplice. The affidavit submitted by the defendant states that, upon the same day when this defendant was indicted in Kings county for the killing of Ubriaco and Morello, Mancini was indicted in New York county for the killing of Ferrazano. The indictment against Mancini was what is known as a secret indictment, and defendant's counsel in the moving affidavit states that it is his belief that it was not known to the trial court in the present case at the time of the trial that Mancini had been indicted, but that knowledge of the fact of such indictment having been found against him was known at the time of defendant's trial only to the district attorneys of Kings and New York counties.

The defendant further contends that the assistant district attorney who tried the case against this defendant endeavored to withhold from the court and the jury knowledge that the witness Mancini was then a codefendant under indictment in connection with one of the murders which were the result of the conspiracy. In support of his contention he refers to the record of the cross-examination of Mancini, as follows:

"Q. And you are under indictment now, aren't you, for murder? "Mr. Warbasse: That is objected to unless the same rule, by consent, applies to the defendant and all of the defendant's witnesses.

"The Court: Let him say whether he is under indictment for murder arising out of this same occurrence.

"Mr. Warbasse: I have no objection to that.

"The Interpreter: Question, please?

"By Mr. Reilly: Q. You are under indictment for murder-for one of the murders that Daniello told the police about?

"The Court: That is excluded. That is not what I said I would allow. "By Mr. Reilly: Q. Well, whom are you under indictment for the murder of? "Mr. Warbasse: That is objected to as assuming he is.

"The Court: That is excluded.

"By Mr. Reilly: Q. Are you indicted for the killing of Ubriaco? A. I never killed anybody.

"Q. I say, are you indicted? A. Never."

On redirect examination Mr. Warbasse, the trial assistant district attorney, asked these questions:

"Q. Last November, when you were sent to police headquarters, you were sent there under arrest as a witness, were you? A. I was arrested as a witness; yes.

"Q. And you are still held as a witness? A. Yes; as a witness. I am under $25,000 bail.

"Q. You testified before the grand jury, didn't you, in this case? A. Yes."

(178 Ν.Υ.Σ.)

On re-cross-examination by Mr. Reilly the following took place: "Q. You say you are here as a witness now? A. Yes.

"Q. Haven't you been indicted in New York, and haven't you pleaded not guilty to the indictment of murder in the first degree?

"Mr. Warbasse: Objected to. Your honor has already excluded it as improper.

"The Court: Well, I will allow him to answer. "The Witness: I have not killed anybody yet. What do I know? "By Mr. Reilly: Q. Have you pleaded to an indictment in New York. A. I was only before the grand jury. I was not before the court.

"Q. Have you been over to New York since you have been arrested? A. Yes; after they called me here, they sent me to New York."

The rule has already been referred to that one accomplice cannot be used to corroborate another accomplice. 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.

After the trial and conviction of the defendant, and on the 13th of December, 1918, Mancini pleaded guilty to manslaughter in the second degree, in that he, with others, conspired to kill Ferrazano, and upon the recommendation of the district attorney of Kings county he received the same terms and benefit as Daniello had received, namely, a suspended sentence and probation.

[8] The question is thus squarely presented whether, if the jury by whom the defendant was convicted had been aware of the relation of Mancini to the conspiracy, and the fact that at the time when he testified he was an accomplice and under indictment for the commission of one of these murders, would the jury have regarded his testimony in the same light as they presumably regarded it in reaching the conclusion which they did?

It is apparent from what will now be stated that the question of the corroboration of Daniello's testimony by that of Mancini was a factor of extreme importance in the minds of the jury. I am unable to give any stronger proof in support of this statement than is found in a perusal of the record itself. In the summation of the case by the assistant district attorney great weight was placed upon the fact that Mancini's testimony corroborated that of Daniello, and that Daniello's testimony corroborated that of Mancini upon the fundamental point in the case, namely, that the defendant was initiated into the band of criminals forming the Camorra, which was organized for the purpose of dealing in murder and stealing. At the conclusion of the testimony the following discussion took place between court and counsel:

"The Court: Now, as to those two witnesses that you spoke of, Daniello first; on what theory do you claim, Mr. District Attorney, that the question of whether he is an accomplice should be submitted to the jury as a question of fact?

"Mr. Warbasse: First, because the complicity of any witness is always a question of fact.

*

*

"The Court: Now, as to Mancini; will you tell me, Mr. Reilly, please, what evidence in the case you think justifies leaving to the jury, as a question of fact, whether Mancini is an accomplice?

"Mr. Reilly: The evidence is that six men were named in the general scheme to get rid of the Morellos. Six men were named in Philadelphia.

"The Court: Yes.

"Mr. Reilly: The evidence is that certain persons got rid of Ubriaco and Morello as a part of the scheme. Then Ralph Daniello and John Mancini are sent from Brooklyn over to New York to kill Ferrazano. Ferrazano is killed by two other men, while these two are waiting outside, and had Ferrazano come out at the door at which they were waiting they would have killed him themselves.

"The Court: I thought there might be a possibility of inferring that Mancini was sent over there to kill him; but there is no evidence at all that Mancini was sent over there to kill him.

"Mr. Warbasse: Let me call your honor's attention, in that connection, to Daniello's testimony that Mancini knew nothing about the mission for which they went over.

"Mr. Reilly: My recollection is, and the copy of the evidence that I have shows, that Mancini waited outside.

"The Court: With Daniello?

"Mr. Reilly: Yes; and that as soon as it was over they both came back to Brooklyn, and both went to Alessandrio's house to tell him it was done, and rang the door bell, which was not answered, and then, when there was no response

"The Court: I hardly think there is any evidence there from which the jury could possibly infer it, though perhaps I could leave it to them as a question of fact. There is no direct evidence-none that I recall, at any rate.

"Mr. Reilly: No; no evidence but that which I have stated. If from that evidence they make up their minds that he was an accomplice, and arrive at the conclusion that he was an accomplice, then he is just as much an accomplice in law as Daniello.

"The Court: I think that I will probably explain to the jury what an accomplice is, and say they can decide for themselves whether there is any proof in the case which justifies finding that Mancini was an accomplice.

"Mr. Warbasse: It seems to me that, before your honor could submit the question of the complicity of Mancini to the jury, there would have to be some evidence in the case upon which a conviction against Mancini could be based. "The Court: That is true, but there are certain circumstances that are suggestive, at least, about Mancini going over there. What was he there for?

"Mr. Reilly: They were all members of the one gang. They knew in Navy street what they were going to do to the Morellos. He was present that day. and he was present at the banquet when the toast was drunk: 'Here is to the health of the Neapolitans and the destruction of the Sicilians."

"Mr. Warbasse: You will recall, for instance, that not only Paolo Panzoni said, but Daniello said, that the conference was almost over at the restaurant When Mancini came in.

"Mr. Reilly: He was unfortunate in being late, but he was down at the banquet that night, and knew what they had done.

"The Court: He claims that they were down at his own place when some of them were sworn into the Camorra, and they may have made him a member of the Camorra, for all I know. That sounded about like what they were doing."

The court charged the jury regarding Mancini as follows:

"The people claim that, among other witnesses, they have corroborated what Daniello said, and have shown the defendant's connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged murder. Mancini claims that he was in those places; that he heard some of the talk as to the planning of this shooting in Navy street; and that he went over to New York with Daniello at the time of the killing of Ferrazano, who is said to have been the third member of the Morello gang to be killed pursuant to this conspiracy. Although there is no claim that Mancini had a hand in the actual killing of Ferrazano, he appears to

(178 N.Y.S.)

have been outside of or near the restaurant with Daniello at the time that the two other men went into the restaurant and did the actual killing. The claim of the defense is that Mancini was also an accomplice; that he was a party to this same undertaking, and was just as guilty as Daniello.

"An accomplice, very briefly, is any one who has a hand in the commission of a crime, where the proof shows that he himself could be indicted for the crime. In other words, the proof has to show, before a jury can find that a witness is an accomplice, that the alleged accomplice could himself have been legally and properly charged with the commission of the offense in question. I have said, as to Daniello, that there is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. But, as to Mancini, he does not say that he was a member of the gang, or had any hand at all in this killing. That he knew the others, that he went with them more or less, and met them here and there, is not denied; but whether or not he was an accomplice in the eyes of the law I am going to leave to you as a question of fact. It will be determined, as I have already indicated to you, by your decision as to whether or not you find on the proof in this case that he (Mancini) could himself have been properly and legally prosecuted for this particular crime. If he could have been, he is an accomplice; if he could not have been, he is not an accomplice. If he is not an accomplice, and you believe what he says, then you might-I do not say you would-find in his testimony corroboration of what Daniello said, at least as to some part, tending to connect the defendant with the commission of this crime."

The jury retired at 6:31 o'clock p. m. They returned into court at 2:23 o'clock on the following morning, and the following took place:

"The Court: Mr. Foreman, you say you want a part of the charge read? "The Foreman of the Jury: The part of the charge in which you state the law about John Mancini in this case.

"The Court: All right; the stenographer will read that to you. (The stenographer read as follows:)

""They have corroborated what Daniello said, and have shown the defendant's connection with this crime by the witness Mancini. Mancini, you may remember, was the man who testified that he was a partner of Daniello some years ago in the restaurant business, and claims that he was present at one or two of the conferences at Coney Island and elsewhere, and also in the restaurant on Myrtle avenue on the day of the alleged murder. Mancini claims that he was in those places, that he heard some of the talk as to the planning of this shooting in Navy street, and that he went over to New York with Daniello at the time of the killing of Ferrazano, who is said to have been the third member of the Morello gang to be killed pursuant to this conspiracy. Although there is no claim that Mancini had a hand in the actual killing of Ferrazano, he appears to have been outside of or near the restaurant with Daniello at the time that two other men went into the restaurant and did the actual killing. The claim of the defense is that Mancini was also an accomplice; that he was a party to this same undertaking, and was just as guilty as Daniello.

"'An accomplice, very briefly, is any one who has a hand in the commission of a crime, where the proof shows that he himself could be indicted for the crime. In other words, the proof has to show, before a jury can find that a witness is an accomplice, that the alleged accomplice could himself have been legally and properly charged with the commission of the offense in quesion. I have said, as to Daniello, that there is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point. But, as to Mancini, he does not say that he was a member of the gang or had any hand at all in this killing. That he knew the others, that he went with them more or less and met them here and there is not denied; but whether or not he was an accomplice in the eyes of the law I am going to leave to you as a question of fact. It will be determined, as I have already indicated to you, by your decision as to whether or not you find on the proof in this case that he (Mancini) could himself have been properly and legally prosecuted for this particular crime. If he could have been, he is an accomplice; if he could not have been, he is not an accomplice. If he is not an accomplice, and you believe what he says, then you might-I do not say you would-find in his testimony corroboration of what Daniello said, at least as to some part, tending to connect the defendant with the commission of this crime.'

"The Court: Gentlemen, if that is not all you want, please let me know now, I shall be here all night, and if there is anything you want at any time, if you will let me know, you may come in and have it."

At 2:28 o'clock a. m. the jury again retired. At 3:08 o'clock a. m. the jury again returned into court,

"The Court: Gentlemen, after you retired, I had my attention called to the fact that the stenographer, when he began to read to you, began in the middle of a sentence; and in order that there may be no possibility of any misappre hension about it I have asked you to come back. I think it is clear to you what was meant; but he started off as though I had stated it as a fact that there was a corroboration. Of course, you know that I did not state that as a fact. I said that it is for you to say whether there is. I said that the prosecution claims that there was corroboration in the opening part of the sentence which the stenographer omitted to read to you, and which just preceded the point at which he began. I think it was plain, anyhow, but in the abundance of caution I asked you to come back that I might say that to you. In listening to the stenographer read what I said about accomplices, I am afraid that perhaps my definition of accomplice might be misunderstood by laymen. What I am going to say to you about it now is exactly the same in legal meaning as what I did say to you.

"I said that an accomplice is one who could properly and legally be indicted for the offense in question. That is correct, because no one could properly and legally be indicted unless the proof was sufficient to convict him. You might not know that, however, and I am just going to say that what that meant is that an accomplice is one who could be convicted of the offense charged, and that is equivalent to saying that he could be lawfully indicted, because you cannot find a lawful indictment unless there is sufficient proof to convict. Not being lawyers, however, you might not know that. I am not making any change at all in the legal effect of the charge, but am just explaining to you what perhaps I should have explained in the first instance. I think you will get that clearly. An accomplice is one who himself, on the proof in the case, would be guilty of the offense charged. If he would not be guilty on the proof in the case of the offense charged, he is not an accomplice. I hope that is plain."

In view of this recital of the proceedings upon the trial, and in view of the facts which have developed with regard to Mancini's indictment and subsequent conviction, is it possible to resist the conclusion that, if the facts regarding his indictment for complicity in the crimes which were the outcome of the conspiracy had been known to the jury, the result of their long deliberations would have been different? Whether knowledge of the fact of Mancini's indictment for murder was deliberately kept from the trial court and the jury by the assistant district attorney who tried the case, as is claimed by the defendant, or whether it was then unknown to the prosecuting officer, is immaterial. I do not decide that question. It is sufficient that the jury did not know the fact. Clearly the trial justice himself was not aware of it. If he had been, he most certainly would not have charged the jury as he did regarding Mancini. Moreover, there is nothing in the elaborate briefs which were submitted to the Court of Appeals which disclosed the fact to that court. As a matter of fact, the fourth point in the brief of the learned district attorney before that court states as a proposition: