191 A.D. 375 | N.Y. App. Div. | 1920
Lead Opinion
About eight o’clock on the evening of Sunday, the 24th of November, 1918, three men entered a little grocery store at No. 100 Harrison street, Brooklyn, kept by Pasquale Della Mura and Lucia, his wife, and at the point of a revolver took $150 from the money drawer. This robbery was conclusively proved and is not controverted. The serious question litigated was whether the defendant was concerned in it.
One peculiarity of the case is that Pasquale and Lucia Della Mura deny that the defendant was one of the robbers. Obviously the district attorney knew, when he brought the case on for trial, that such would be their testimony; nevertheless as he was compelled to prove the robbery, he was forced to call either Pasquale or Lucia, and he chose Lucia. He proved by her simply the fact of the robbery and turned her over for cross-examination. Nothing was said by her about the identity of the defendant except that she voluntarily stated that she did not know the men who robbed her.
An important episode of the trial took place at this point, but I will pass it over for the present.
The district attorney then placed upon the stand a lad of about eleven years of age, a son of the Della Muras, who was present at the time of the robbery. The judge examined this boy to ascertain his understanding of the nature of an oath, and declined to swear him. His testimony was, however, received under section 392 of .the Code of Criminal Procedure. An important result flowing from this is that the defendant cannot be convicted upon the testimony so given “ unsupported by other evidence.”
The lad testified to the robbery and identified the defendant. A police officer, James Guerin, was then called. Guerin testified that while he was standing in Columbia street, which was three or four city blocks from the place of the robbery, he saw in front of him a man who was panting as if he had been running. The man, watched by Guerin, put something down on a cellar door. Guerin followed him, found that the article was a revolver, and arrested him. . That man was the defendant. He was taken by Guerin back to 100 Harrison street, where the robbery was committed. Guerin testified that in defendant’s presence he asked both Pasquale and Lucia
It is urged that the testimony of the boy was not supported by other evidence. Defendant, panting as if he had been running, was arrested near the point to which Della Mura had chased the robbers. He tried to get rid of the incriminating evidence of a revolver. The boy testified that the defendant had a black band on his arm, and a detective, McCarthy, testified that the defendant had a mourning band on his arm. The silence of the defendant, in face of the accusation by Pasquale and Lucia Della Mura, is, if competent, which will be considered later, supporting evidence. We think, therefore, that the testimony of the boy was supported by other evidence and that the question of identity was one of fact for the jury.
The defendant claims that evidence of his silence in the face of the charge against him is not admissible, because he was then under arrest. It has been said by the Court of Appeals that evidence of this character is dangerous and should always be received with caution. (People v. Kennedy, 164 N. Y. 456.) With this remark every one who has had experience in criminal trials must agree. It is entirely too probable that the jury, not conversant with the arbitrary rule excluding hearsay evidence, would give weight to the accusation itself. The evidence is admissible only ifjthe accused is “ at full liberty to make answer thereto.” (Kennedy Case, supra.) No one is compelled to be a witness against himself. (Const, art. 1, § 6.) The failure of the accused to testify on the trial is not evidence against him. (Code Grim. Proc. § 393.) When arraigned before a magistrate he may remain silent, or if he elect
I now turn to the episode that took place during the examination of Lucia Della Mura. I have already stated that the district attorney, after he had proved the fact of the robbery, turned the witness over to the defendant for cross-examination. It is obvious that the district attorney knew that the witness would not identify the defendant as one of the robbers. When defendant's counsel declined to cross-examine, the district attorney took the witness again and, without asking her directly whether the defendant was one of the robbers, began to cross-examine her on previous statements which it was suggested that she had made to that effect. The witness was also interrogated as to what took place in the Magistrate’s Court, where the defendant was held for the grand jury. The district attorney read to her what he said was a transcript of her testimony before the magistrate, as follows: “About 8 p. m. on that date, the 24th of November, the said Cascia, accompanied by two unknown men, entered the grocery store, conducted by me, at the premises 100 Harrison street, and that while the said Cascia did point a revolver at and in my direction, the two unknown men went behind the counter
It is difficult to see any rule of evidence or administration under which this evidence could have been admitted. There are many cases which hold that where a counsel is surprised at the testimony of his witness he may refresh the recollection of the witness by calling attention to prior statements, and may probe his conscience for the purpose of compelling him to testify to the truth. This rule is well established. But the district attorney was not surprised in this case. He knew before he began the examination that this witness would not identify the defendant. He did not ask her the question. It seems to me that the purpose and effect of this line of inquiry was to bring before the jury these prior hearsay.statements of the witness upon the very issue upon which this case turned, namely, the question of identity. In doing this the district attorney succeeded in getting before the jury, first, that the witness had stated, immediately after the robbery, that defendant was one of the robbers, and, second, that she had sworn to it in the Magistrate’s Court, although the last was rather by way of innuendo than by direct proof. But when the jury heard the district attorney read the affidavit which he said was the information laid by this witness before the magistrate, the belief was necessarily borne in upon them that the affidavit was actually made and sworn to by the witness. I think the method the district attorney pursued was erroneous. As no objection and exception were taken to this evidence, no error of law was committed. (People v. McDonald, 159 N. Y. 309.) But nevertheless if we are convinced that upon this delicate issue of identity the admission of this evidence was unduly prejudicial to defendant, so that he did not have a fair trial, it is competent for us to reverse. (Code Crim. Proc. § 527.) I must, therefore, go further.
I have already reached the conclusion that it was competent
I find no other point in the case which calls for discussion, and am of opinion that the evidence justified the conclusion that defendant had a fair trial and that there was no substantial error of law.
The judgment of conviction should be affirmed.
Rich, Kelly and Jaycox, JJ., concur; Jenks, P. J., reads for reversal.
Dissenting Opinion
I dissent. The circumstance of the trial is stated in the prevailing opinion.
I think that there is capital error in the admission of the silence of the defendant. At that time he was under arrest. (Code Crim. Proc. §§ 167, 171.) In People v. Marendi (213 N. Y. 613) the eminent judge who wrote for the court says: “ The defendant made a response in his own language, which no one present could interpret. Even if he had stood mute his silence could not' have been construed as an admission, because he was then under arrest and not called upon to speak or deny an accusation. (People v. Smith, 172 N. Y. 210, at page 234; Commonwealth v. McDermott, 123 Mass. 440.)” And a reading of People v. Smith (supra) reveals that the eminent judge who
I think that these are cogent statements of the principle that should obtain in this instance. The Constitution of New York provides: “ No person shall * * * be compelled in any criminal case to be a witness against himself.” (Art. 1, § 6.) This organic law is embodied in the Code of Criminal Procedure, section 10: “ No person can be compelled in a criminal action to be a witness against himself.” It was defendant’s silence when in the hearing of the speaker, and after the utterance of the speaker, that made the “ evidence.” And the defendant was “ compelled.” His physical presence was enforced, and he could do nothing further by way of protest or protection than by standing then and there mute. Thus, in spite of his own practical invocation to the full of the organic and criminal law against self-crimination, the defendant was compelled to furnish evidence against himself, declared competent in his trial. But at trial his neglect or refusal to testify cannot create any presumption against him. (Code Grim. Proc. § 393.) If when under arrest the mere silence of the defendant constitutes evidence that makes for his guilt, then one purpose of the organic law is thwarted, for the reason that the defendant is required to furnish evidence against his will in a compulsory way. (See People v. Tice, 131 N. Y. 655.) And see, too, the principle as stated in Talcott v. Harris (93 N. Y. 567, 572): “ It would be going very far to hold that a party arrested upon ex parte affidavits should be considered as assenting to their verity because he omitted or refused to answer them before the time which the law allows him for that purpose. We are unable to see how such testimony can be justified.” It is not the administration of the oath that is safeguarded to him, but the compulsory feature of such an occasion. (People v. Ferola, 215 N. Y. 290.)
But it is said by my brother who writes for the court, that these statements of the rule in People v. Marendi and in People v. Smith (supra) are but dicta. That may be, in that the rule
The argument in Kelley v. People of the State of N. Y. (supra) is that when declarations are made in the presence and hearing of the accused touching or affecting his guilt or innocence, “ and he remains silent when it would be proper for him to speak,” it is the province of the jury to interpret the silence. And the argument is pursued with the statement. “ and, therefore, except in those cases where the statements are made upon an occasion and under circumstances in which the individual sought to be affected could not with propriety speak, as in the progress of a judicial investigation,” etc., “ the evidence is competent.” And the rule is finally stated as follows: “ It is no objection to the admission of the declarations of the accused, as evidence, that they are made while he is under arrest, and his admission, either express or implied, of the truth of a statement made by others under the same circumstances is equally admissible. His conduct and acts, as well when in custody as when at large, may be given in evidence against him, and their cogency as evidence will be determined by the jury.” (Italics mine.) (Citing People v. Wentz, 37 N. Y. 303; Hochrieter v. People, 2 Abb. Ct. App. Dec. 363; McKee v. People, 36 N. Y. 113; Teachout v. People, 41 id. 7; Commonwealth v. Cuffee, 108 Mass. 285, and Commonweath v. Crocker, Id. 464.) My respectful contention is that there is a manifest
I think that the occasion considered in the case at bar, to adopt the language of exception of the court in Kelley’s Case (supra), was one when it would not be “ proper for him to speak,” and one of “ those cases where the statements are made upon an occasion and under circumstances ” when the defendant “ could not with propriety speak.” The head note in Commonwealth v. McDermott (123 Mass. 440), cited by the court in Marendi’s Case (213 N. Y. 600) correctly reads: “A person who is held in custody-on a charge of crime jointly with another person is not called upon to contradict statements prejudicial to him, made in his presence by the other person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence
I respectfully urge that the rule in Kelley v. People of the State of N. Y. (supra) does not and should not apply when a defendant under arrest stands motionless and mute.
In People v. Tice (131 N. Y. 655) the court say that the constitutional provision (Const, art. 1, § 6) protects persons charged with crime against “inquisitorial and compulsory proceedings.” The days of the boot and the thumb screw are gone. But what in our day can more resemble inquisitorial or compulsory proceedings than ‘the opportunity afforded by the arrest of a defendant while he .remains alone, without counsel, or the protection of judicial procedure. And yet the proposition is he cannot stand even mute and at gaze, without affording that evidence against himself which is made in part by the accusation of others but only completed by his own silence.
The case at bar is far from strong on the proofs of identification, and I have grave doubts of the legal propriety of the episode described by my brother Blackmak, with reference to the examination of the .witness Lucia Della Mura.
I think that a new trial should be ordered.
Judgment of conviction and order of the County Court of Kings county affirmed.