110 N.E. 167 | NY | 1915
Some time between the 8th and 10th days of April, 1914, one Guiseppe Marino was shot to death in a room on the top floor of the house *125
No. 634 East Thirteenth street in the city of New York. The defendant has been convicted of the premeditated and deliberate murder of this man upon evidence which not only justified, but required the submission of the case to the jury, and which is amply sufficient to sustain their verdict. The case for the People consisted largely of confessions by the defendant and corroborative evidence given by Louisa Macaluso in whose room Marino was killed. The defendant, who testified in his own behalf, repudiated these confessions and his testimony tended to show that they were not voluntary but were made under compulsion exercised upon him by police officers shortly after his arrest. The defense also relied upon the fact that Louisa Macaluso had at one time confessed that she was really the perpetrator of the crime, as requiring the jury to reject wholly her testimony against the defendant given upon the present trial. Upon all the proof, however, there was a clear issue of fact presented for the consideration and determination of the jury. As was said inPeople v. Poulin (
This appeal presents only another example of the numerous class of homicide cases with which the Court of Appeals cannot interfere without usurping the province of the jury. In such cases, where no serious question of law is involved, it has been our custom of late years to pass upon the appeal without writing an opinion which would only serve by a discussion of the facts to perpetuate in detail the narrative of a tragedy. In the brief filed in behalf of the appellant there is no suggestion of any error of law except in the final point where it is contended that the court erred in failing to instruct the jury to take into consideration Louisa Macaluso's confession of guilt and general character when estimating the value they should give to her testimony. No exception *126 was taken to the charge in this or any other respect; and every request for instructions made by counsel for the defendant was complied with by the learned trial judge. He referred to Louisa Macaluso's confession and to the fact that shortly after the crime she fled in disguise as tending to support her statement to the effect that she was the real criminal. In the absence of any request for further instructions on this subject it is impossible to hold that any legal error was committed because the judge did not amplify his charge in this respect.
Under the circumstances which have been stated there would be no occasion for writing an opinion in the present case were it not for a request made by the learned assistant district attorney both in his oral argument and in his brief. He has asked the court in determining the appeal to consider certain matters outside the record which happened after the conviction. After the defendant was convicted section 2011 of the Code of Civil Procedure was amended so as to allow a prisoner under sentence of death to be brought to court to testify as a witness. (Laws of 1915, chap. 354.) This amendment took effect on April 23, 1915. It appears from the statements in the brief for the People that one Angelo Leggio had been indicted for murder in the first degree as the person who instigated the murder of Marino and he was brought to trial on May 17, 1915, in the Court of General Sessions. The defendant in the present case was taken to New York city from the state prison to testify upon the trial of Leggio as a witness for the People; and we are asked to consider the stenographic minutes of the testimony which he then gave as containing an admission under oath that he fired the shot which killed Marino. "These matters," says the learned assistant district attorney "are embodied in unimpeachable documentary record form. It seems to be well settled that evidence of this sort although dehors the record may be received upon *127
appeal for the purpose of sustaining a judgment." As authorities sustaining this proposition we are referred to Stemmler v.Mayor, etc., of New York (
Under the rule thus invoked we know of no case which goes so far as to hold that an appellate court, even in order to sustain a judgment, may consider the stenographic minutes of the testimony of a party given upon a trial subsequent to the trial under review.
A review of the cases in this court in which the consideration of evidence dehors the record has been sanctioned will show that the practice has generally been confined to record evidence in the strict sense of that term. We will notice these cases in the order in which they arose. In Robert v. Good (
The Stemmler case is probably as liberal an extension of the rule under consideration as can be found in the books, and yet even there the evidence which it was held might be considered possessed the incontrovertible character which has frequently been regarded as essential to render it receivable by the appellate tribunal in the first instance. In brief, it should be something which cannot be changed and the credibility of which is not open to attack. Such is not the character of the evidence which we are asked to consider by the learned assistant district attorney. That is simply the written report of testimony given by the defendant upon a trial which took place more than two months after the trial here under review. The transcript of the stenographer's minutes possesses none of the characteristics of a record in the sense in which that term is used in the cases which have been reviewed. The defendant concededly has made several different statements in regard to the commission of the crime of which he has been convicted; non constat that *131 he might not if called upon to testify again contradict and deny all that he said upon the trial of Angelo Leggio. Being thus susceptible of variance it does not possess the absolute character essential to evidence receivable in the first instance upon appeal.
For these reasons we have not taken it into consideration. We have discussed the matter, however, at some length because it is assumed in the brief for the People that the admissibility of such evidence was sanctioned by the language used by Judge CHASE in People v. Seidenshner (supra). In the case cited the appellant's brief contained abundant quotations from the stenographic minutes taken in the case of People v. Becker and sought to show inconsistencies between the testimony given by the same witnesses on the two trials. This court refused to consider their former testimony thus brought to its attention, saying: "The record cannot now be changed, nor can testimony be read into it from another trial, even if the record in such other trial is on file as a part of the records of this court. (Citing cases.) The record of testimony in the Becker case is not record evidence within the rule that record evidence not in the return may sometimes be read by the court on review, and, moreover, such rule is only applied in support of a decision, and never to secure a reversal." (p. 358.)
The judgment of conviction must be affirmed.
CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY and POUND, JJ., concur.
Judgment of conviction affirmed. *132