People v. LaBarberaPeople v. LaBarbera
Mоtion by each defendant to dismiss indictment as against himself on the ground that an examination of the minutes of the grand jury shows the evidence submitted to said grand jury to be insufficient to warrant such indictment. Motion by the district attorney that in event of the dismissal of such indictment he be permitted to resubmit the case to a grand jury. Motion by the district attorney to be permitted to amend the indictment as to its second count.
The indictment is in three counts and charges both defendants as follows: First count, with the crime of murder in the first degree committed while engaged in the commission of a felony (arson in the second degree) and resulting in the killing of one Peter Joseph Gagliano; second count, with the crime of arson in the second degree, consisting of willfully setting fire to and burning an uninhabited building in which there was not at the time a human being; third coiint, conspiracy consisting of conspiring to commit thе crime of arson in the second degree at the premises described in the second count.
The district attorney seeks to amend the second count of the indictment so as to describe the building burned as being within thе curtilage of an inhabited building in which there was at the time a human being, so that the inhabited building became endangered, and further to describe such crime of arson in the second degree as being done with the intent to prejudice or defraud the insurer of the premises. In reference to the amendment in the second count it would become necessary to deny the motion of the district attorney to amend so as to set forth the fact that the building was within the curtilage of an inhabited building because the grand jury minutes contain no reference to the surroundings of the building burned. There is, however, sufficient testimony in the grand jury minutes to warrant the amendment so аs to set forth the intent to defraud the insurer.
Each defendant claims that there was insufficient evidence before the grand jury to sustain any count of the indictment, and this question is raised specifically as to the criminal аgency of such defendant. Each defendant further claims that considerable illegal testimony was received by the grand jury. An examination of the
In brief, the legal evidence before the grand jury and the inferences which the grand jury could draw from such legаl evidence were as follows: That prior to the death of the said Gagliano the two defendants arranged for the purchase and the taking of title by the defendant Petro of a mortgage on the premises ater burned. The title to such premises had been abandoned by the owner of the equity thereof on account of unpaid taxes. On behalf of the two defendants, the defendant LaBarbera employed thе decedent Gagliano, with the promise of a fee of $300, to set fire to the premises. Said Gagliano employed one Musso to assist him in such fire setting and went to the premises wth the said Musso. Musso remained on one floor while Gagliano went to the top floor, and while Gagliano was arranging gasoline and other material and electrical apparatus for the purpose of setting fire to the place there was an explosion and Gagliano was so severely binned in the explosion that he died. Part of the evidence from which the inference can be drawn that LaBarbera employed Gagliano for thе task is based on a conversation held after the fire between Mrs. Gagliano and the defendant LaBarbera in which in substance she accused him of hiring her husband to set fire to the place. The conversation had to do with the matter of the $300 to which reference has been made above. In reply to Mrs. Gagliano\s accusation LaBarbera replied that the $300 transaction had to do with a mortgage, but later, uрon her pressing the point of the hiring to set fire to the place, he said in substance, “ What are you going to do about it?” and promised that when the owner of the mortgage (Petro) secured his money he would pаy her a portion of this sum that she had demanded.
In order to sustain the indictment it is necessary that the district attorney should have had a legal right to present to the grand jury Mrs. Gagliano’s testimony as to this conversation. The dеfendants claim that in view of LaBarbera’s denial such conversation was inadmissible. (People v. DePaulo,
The jury had a right to take the denial of LaBarbera and his later remark and to infer from such later remark that his denial was of no value and that his later remark was an acquiescence in the truth of the accusation of Mrs. Gagliano that her husband had been hired by the defendant LaBarbera to set fire to the building.
The count charging conspiracy is attacked by each defendant on the ground that there is no proof of an overt act (
In view of the above the court is of the opinion that the count charging arson in the second degree is based upon evidence which was sufficient to warrant the grand jury in indicting for arson in the second degree for the purpose of defrauding an insurer and for conspiracy to commit a crime, to wit, the crime of arson in the second degree.
The court now turns to the accusation contained in the first count, which charges murder in the first degree. This count is found under that portion of section 1044 of the Penal Law which provides as follows:
“ The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed:' * * *
“ 2. * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise.” •.
In regard to this count each of the defendants contends that even though he had conspired to commit the crime of arson, and the death of Gagliano came about in the carrying out of such conspiracy and in the comm ssion of the crime of arson, the fact that the man who actually set fire to the place or was setting fire to theplace brought about his own death by the act of attempting to set fire or setting fire, excludes such a death as being murder under the subdivision of section 1044 of the Penal Law as above quoted. This section of the Penal Law since its enactment has been the subject of much comment, and the means of bringing about the conviction of many felons for murder. Its exact meaning has been the cause of discussion in our courts. (People v. Greenwall,
The case last above cited (People v. Ferlin) is in facts similar to the case at bar. There the perpetrator of the arson was killed through his own act. Search of counsel and of the court has failed to show any other case with similar facts as those herein. The district attorney here claims that the Ferlin case is to be distinguished from the case under discussion because of the definition of the crime in the California statute (
It may be that the district attorney wishes to resubmit to a grand jury a charge of arson so as to sustain an indictment for arson in the second degree on the theory that an uninhabited building within the curtilage of an inhabited building was set on fire, and if so, he is permitted so to resubmit that question.
An order in accordance with the above may be presented for signature.