143 N.Y.S. 62 | N.Y. App. Div. | 1913
The defendant appeals from a judgment of the Supreme Court in Kings county by which he was sentenced to imprisonment on an indeterminate sentence of the maximum of ten years and two months and the minimum of nine years. This judgment was entered upon the verdict of a, jury that convicted the defendant of the crime of manslaughter in the first degree. He was indicted for the murder in the first degree of one Robert Witl on the 2d day of December in the year 1910 in the borough of Brooklyn in the county of Kings. At the trial the theory of the defense was that of justifiable homicide. It is urged upon this appeal by the appellant that the commission of any crime on the occasion in question was not established at the trial beyond a reasonable doubt, and further objection is made as to the rulings of the trial court in the admission and exclusion of evidence, and particular stress is laid upon an alleged error of the trial court in refusing a request made by the defendant for an instruction to the jury. The defendant was a workman in a shoe factory and the decedent was his foreman. Bad blood had developed between these parties on the afternoon of the day before the killing. On the morning of the homicide the defendant came to the factory in question with a five-chamber revolver in his overcoat pocket. He hung this overcoat upon a rack on the wall of the workroom and went to his bench, where he sat down. In a short while the decedent, Witl, came to him with the wages already earned by the defendant and said that he, the defendant, was discharged and should leave the factory. It seems that the quarrel which arose between these parties had some reference to the fact that Witl had discovered that the defendant was in some way connected with a labor union and was receiving membership dues from certain operatives in the factory. On the day before the homicide Witl told the defendant that he would procure his discharge. The defendant then appealed to a Mr. Treat, who was the superintendent of the factory, and a colloquy took place between Treat, the defendant, and the fore, man Witl, in which Mr. Treat advised Witl not to have the defendant discharged but to allow him to stay at work for some time. This took place towards the close of the working day.
After the homicide the defendant left the factory and was pursued by Treat and Ruffle. He went into the rear room of a barber shop and left there on a shelf the revolver which he had used, and which contained five empty cartridges. This weapon was found there subsequently by the police and produced upon the trial, the defendant admitting his ownership of it. Among the police officers making the arrest was one Garner. This officer testified that the prisoner told him that he had shot the decedent because he “was taking the bread and butter out of his mouth,” and that he had bought the gun “the night before.” On cross-examination Garner admitted that he had given no testimony before the coroner as to the defendant’s alleged statement as to the time of the purchase of the revolver, but explains that the omission was due to the fact that he was not asked about it, but it appears that he did state before the coroner that the defendant had said to him that the reason why he had shot Witl was that Witl had taken the bread and butter from him, and that he got excited and shot him. As a part of the case of the prosecution, the coroner’s physician, Hartung, described the location and nature of the wounds as disclosed by a post mortem examination. This witness said he could not tell how the deceased was standing when he received the wound in the foot, but that as to the wound in the abdomen “he was facing whoever shot him.” The location of the wounds was described as follows: “ a pistol shot wound on the outer side of the left foot * * *. There was another pistol shot wound on the right side, on the outside of the upper portion — that is, by the buttocks—just a graze. Then there was a pistol shot wound three inches to the right and three inches below, one wound right in the right side of the abdomen.” The defendant took the stand on his own behalf and produced several witnesses who claimed to have seen the shooting, Amadeo, Valenti and D’Angelo. These witnesses corroborated the main story of the defendant. His
If the jury had accepted the story of the defendant and his witnesses, they might have found a verdict of acquittal on the ground of justifiable homicide. The defendant did not “retreat,” but he was not hound to retreat, if such would imperil his safety the more, or if a reasonable man under the circumstances would he justified in believing that to retreat was to add to the imminent danger. (People v. Jeina, 125 App. Div. 697)
The defendant introduced evidence as to his previous good reputation for peacefulness and quietness. The trial court in its charge to the jury did not refer at all to this evidence, or as to the permissible or possible effect of such evidence on the question of reasonable doubt as to the commission of a crime. At the close of the main charge the court was requested to charge as follows: “How I ask your Honor — and this is the last request — to charge the jury that the defendant has
I think there was error sufficiently serious to require a reversal of the j udgment of conviction and anew trial, and Iso recommend.
Jenks, P. J., Burr, Rich and Putnam, JJ., concurred.
Judgment of conviction reversed and new trial granted.