158 N.Y.S. 1038 | N.Y. App. Div. | 1916
This appeal is from a judgment of the County Court of Kings county, convicting the defendant of the crime of
The indictment contains three counts, and charges the appellant and one Francesco Giarraputo (1) “ of the crime of endangering life by maliciously placing explosive near building, committed as follows: The defendants on April 6, 1915, in the County of Kings, placed, in, upon, under, against and near to the building and store of Joseph Ingoglia, an explosive substance, with intent to destroy, throw down and injure the whole and some part thereof, under such circumstances that human life was endangered thereby;” (2) “of the crime of injury to property, committed as follows: The defendant on April 6,1915, in the County of Kings, unlawfully and wilfully injured and destroyed the following property attached to and part of the building and store owned by Joseph Ingoglia, three windows and the one door, of the value of fifty-five dollars; ” (3) “of the crime of damaging building or vessel by explosion, committed as follows: The defendants, on April 6,1915, in the County of Kings, unlawfully and maliciously, by the explosion of an explosive substance, damaged the building and store of Joseph Ingoglia, thereby endangering the life and safety of a human being.”
The appellant was given a separate trial and found guilty upon the first of the three counts of the indictment, the trial court instructing the jury that if they found the defendant guilty of the offense first charged in the indictment the finding would eliminate the other counts. No evidence was offered on the part of the appellant.
Following this talk, Ingoglia received through the mail a second letter in the Italian language, of which the following is a translation: “ Dishonored man and loafer, try to confide with persons who can do you some good and do so at once — it is better for you — otherwise we will decide what to do — we will do it in few days — you will realize our experience—try to send
Immediately after the receipt of this letter Giarraputo and the defendant came together to the vicinity of Ingoglia’s drug store and the defendant crossed the street and stood there while Giarraputo had a conversation with Ingoglia, which the latter detailed, as follows: “ He said he had tried but could not prevent these men writing and demanding money from me, but on account of our coming from the same country he would be willing to do a little to help me, if I commissioned him.” He referred to the writers of the letters as his friends and said that if Ingoglia came to terms he would try to fix it up. The date when the last letter was received does not appear, but on the night of April fifth, at about eleven-thirty o’clock, Ingoglia closed his store and, after ascertaining by inspection that everything in and about the building was all right, retired to his bed. At about two o’clock the next morning he was awakened by an explosion in front of the store, and, upon going to the windows of the front room, saw the defendant running towards George street, into which he turned. There was a large electric light in front of the store, one on the opposite side of the street and one at the intersection of George street. Ingoglia watched the defendant until he passed out of his sight, then went downstairs and found three windows broken, the bottom part of an outside door blown off, and a hole about eight inches square extending from and through the sidewalk in front of the door, into the cellar. On the same morning, at one-fifteen o’clock, a police officer on duty on Flushing avenue at a point a block away from Ingoglia’s place of business, saw Giarraputo and the defendant going east, and at twenty minutes after two saw them coming from the direction of the drug store. At about two o’clock one Stichler, residing on Knickerbocker avenue, about 125 feet from George street, was standing in front of his house when he saw a man whom he was unable to identify running towards George street, into which street he turned, and shortly thereafter heard the noise made by the explosion. A night watchman, while on Knickerbocker avenue, five blocks away from Ingoglia’s store, heard the explosion, was told of a man running into George street,
The appellant contends that because of the" words “ although no damage is done,” in section 1895 of the Penal Law, it has no application to the case at bar, in which actual damage resulting from the explosion was proven, and that the only offense the defendant could be convicted of upon the testimony given was that alleged in the third count of the indictment, damaging the building by the explosion. This contention is without merit. The fact that actual damage was done and human life and safety thereby, and as the result of such explosion, were endangered, renders the person placing the explosive guilty of a felony under the provisions of section 1895 of the Penal Law, exactly the same as if no damage had in fact been done, and it had been proven that if the intent to destroy, throw down or injure the building by the placing of the explosive had been accomplished by consequent damage or destruction of the building, human life or safety would have been endangered thereby. The words used in the statute, “although no damage is done,” do not exclude cases where actual damage is sustained, or limit its application to those cases where for any reason no damage followed the placing of the explosive. They mean no more than that the absence of actual damage in a given case does not constitute, and cannot be proven as, a defense. The appellant argues that the first count of the indictment, under which the conviction was had, does not state facts sufficient to constitute a crime, and should have been dismissed. He cannot now be heard upon that question, not having demurred or moved upon the trial to dismiss the indictment or in arrest of judgment upon such ground. It
The judgment of conviction of the County Court of Kings county must be affirmed.
Jenks, P. J., Thomas, Carr and Mills, J J., concurred.
Judgment of conviction of the County Court of Kings county affirmed.