173 N.Y. 509 | NY | 1903
Lead Opinion
The appellant was convicted of murder in the first degree in having killed one Michael Carrafiello on October 22d 1900, by stabbing him in the bowels with a knife. The facts of the case lie within a comparatively narrow compass. The deceased and the witness Decicco, on the day of the homicide, went from Bridgeport, Connecticut, where they were then residing, to the city of New York, and about two o'clock in the afternoon reached the apartment of an acquaintance, Bernardo Marotta, in First avenue near One Hundred and Fifteenth street. There they found Marotta, his wife and the appellant. While in this apartment the parties had some beer, and after a time Mrs. Marotta demanded from the deceased payment of some money which the latter owed to her. The deceased stated either that he was unable or unwilling to pay his debt. Some words ensued between them, when the defendant intervened in the dispute. There is a conflict in the evidence as to what thereupon took place. The defendant and Marotta and his wife testified that the deceased drew a revolver and threatened to shoot the defendant. Decicco, *512 the companion of the deceased, testified that the defendant drew a revolver, and that the deceased had none. However this may be, it appears that no blows were struck, nor weapons used, and that Marotta took the defendant away and shut him up in an adjoining room. After a short while the deceased, Decicco and Marotta went together down into the street and remained for some time on the sidewalk. Here again witnesses disagree as to what took place. Marotta and his wife and their son, a boy about eleven years old, say that the deceased drew his revolver and threatened the defendant, who appeared at the window of the room above, and also sent by the boy a challenge to the defendant to come to the street, when he (the deceased) would "fix him like Christ on the cross." Decicco denied any occurrence of this character, and testified that the defendant brandished a revolver from the window. While standing on the sidewalk one De Feo joined the party, and the deceased and Decicco went with him to his apartments in One Hundred and Fifteenth street, where they met Angelo Testa. There they played cards and drank beer. Between seven and eight o'clock in the evening all these persons went out of the house and stood on the sidewalk at the corner of One Hundred and Fifteenth street and First avenue, listening to music given at a political meeting in that vicinity. While there Marotta passed by on his way to a saloon to get beer. The deceased stepped away from his companions and spoke to Marotta and at this time the defendant approached him and inflicted the fatal wound. The occurrence was of the briefest duration, but as to its details there is the sharpest conflict between the witnesses. The three companions of the deceased, Decicco, Testa and De Feo, testified that the defendant approached the deceased and stabbed him in the abdomen without warning or altercation. The defendant and Marotta testified that the deceased seized the defendant by the coat and drew a revolver, and that thereupon the defendant struck him with the knife. The defendant testified that he was afraid of the deceased, and that when he saw the latter he opened his knife and put it *513 opened into his pocket. After striking the blow the defendant ran away through the hallway and up the stairs of an adjacent house, to the roof, where he was apprehended by a police officer who there found the knife which the defendant had thrown away. No revolver was found on the deceased and his companions testified that he had none. The defendant was brought into the presence of the deceased, who identified him as the man who had inflicted the wound. The deceased died the following day.
From this summary of the evidence it will be seen that the case presented a clear and well-defined question of fact to be determined by the jury and that question has been resolved against the defendant. If the testimony of the companions of the deceased was believed, that the defendant stabbed the deceased without altercation or anything occurring at the time to excite passion or anger, it cannot be denied that the jury could justly infer the premeditation and deliberation necessary to constitute murder in the first degree under our statute. (Leighton v.People,
It is contended that the trial court erred in its instructions to the jury. At the request of the prosecution the court *515
charged: "To establish the defense of justifiable homicide it is the duty of one engaged in a quarrel to avoid an attack and not become the aggressor unless other means are unavailable, and if you find that the defendant in this case having, on the afternoon of the 22nd of October, been engaged in a quarrel with the deceased, and desiring to continue that quarrel, descended from the house of Bernardino Marotta to the street, and knew that the deceased was in the street, and with the intention of continuing that quarrel, and for the purpose of making his quarrel effective, took with him a dangerous weapon, and if under those circumstances the defendant sought out the deceased in the public street and entered upon the quarrel which had been interrupted, even though the deceased, under such circumstances, merely drew a revolver, the defendant may be regarded as the assailant and the wrongdoer, and his action in stabbing the deceased is not justifiable homicide," to which the defendant duly excepted. It is urged that the charge was erroneous, in that it ignored the consideration that to deprive a person who commences a quarrel of the right to self-defense the quarrel must be brought on or the assault committed with a felonious intent either to kill or inflict grievous bodily harm on his antagonist. What are the rights and what are the responsibilities of the original aggressor who takes life in a quarrel have been the subject of much discussion by the text writers and in judicial opinions. The strict rule has been stated in England that "No man shall justify the killing of another by pretense of necessity unless he were himself without fault in bringing that necessity upon himself." (1 Hawkins P.C. 82, 83; see, also, 1 East P.C. 278.) This extreme doctrine has not been accepted in the later cases in this country. It has been held that if the defendant withdraw from the quarrel which he has provoked and this is made known to his antagonist and after such withdrawal his antagonist assails him with intent to take his life or inflict grievous bodily harm, he may lawfully defend himself. (Stoffer v. State,
Tested by this rule the charge of the trial court was not erroneous. Some parts of it are subject to criticism as being indefinite. The first proposition, that "to establish the offense of justifiable homicide, it is the duty of one engaged in a quarrel to avoid an attack and not become the aggressor, unless other means are unavailable," stated unquestionably the correct rule of law. (People v. Sullivan,
The judgment should be affirmed.
Dissenting Opinion
I dissent upon the ground that there was no evidence authorizing the jury to find that the defendant "took with him a dangerous weapon," because the knife used was but a penknife that he had carried in his vest pocket for months. The expression quoted was an essential element of the proposition charged and the exception thereto requires a reversal.
PARKER, Ch. J., BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur with CULLEN, J.; VANN, J., reads dissenting memorandum.
Judgment of conviction affirmed.