86 N.Y.S. 116 | N.Y. App. Div. | 1904
It is claimed on behalf of the People that on the 30th day of May, 1902, at about half-past five o’clock in the afternoon Antonio
There is a distinct hiatus in the proof as to what became of Ayocato immediately after the wounds were inflicted. Two witnesses testified that he got up from the street and went to a drug store at One Hundred and Fifteenth street and First avenue. Of what occurred in the drug store there is no proof. Where Avocato was thereafter taken does not appear. The next that is testified concerning him comes from Elmer B. Dixon, a police officer, who states that some time on the thirtieth day of May, the hour of which he does not give, he saw “the deceased; the dead man” when he was in the station house; that he found the ambulance at the door of the station house; that he jumped on behind with Officer Hollaban and they were driven up to 321 East One Hundred and Fifteenth street. Whether the body was in the police station or in the ambulance, or what was done with it, nowhere appears. The next information of the whereabouts of the body is that it was in the morgue at the foot of East Twenty-sixth street in the city and county of Hew York. How it got there is not disclosed. By reason of this failure to produce evi
It appeared that wounds were inflicted upon Avocato at the time of the affray, yet it did not appear what the specific nature and character of those wounds were, or whether they were sufficient to produce death. All the proof upon that subject is that Avocato was stabbed in the body; that when the persons removed themselves from his body he rose to his feet and walked away, whether with or without assistance does not clearly appear. As to where or when he died there is not a syllable of proof. We do not find it necessary in view of the disposition which we make of the questions presented by this appeal to determine whether the direct testimony is sufficient to show that death resulted from the criminal act of the defendant committed at the time of the affray. There is some direct evidence to establish such fact. Upon this subject, however, we express no opinion.
The People to sustain this judgment rely upon the sufficiency of the proof to establish that the body found at the morgue was the dead body of Avocato, who was wounded in the affray The proof upon this subject is given by Joseph Trapani, an undertaker, who, it is claimed by the People, buried the body of Avocato. He testified that he had known Antonio Avocato three or four years before the 30th of May, 1902; that he saw him on the morning of that day; that he next received an order from his wife to bury the body; but could not remember whether he received the order on the first of June. Thereupon he went to the coroner and obtained a permit to remove the body, which he called that of Antonio Avo
In the course of the trial counsel for the defendant called attention to the lack of proof of the height of the parties, and among other things, said, “ the height of the deceased. There is no evidence in this case on that point.” During the whole course of the trial, both by the People and by the defendant, it was assumed that Antonio Avocato, the person who received the wounds, was the same person, the body of whom the undertaker buried. It was not shown" that there was any other person by that name, and the proof was direct that a man of that name received the wounds, was . subsequently found dead and was buried. To the lack of proof we have already directed attention. The only failure is in the omission of a direct statement that the Antonio Avocato living and the Antonio Avocato dead was the same person. The proof was direct that such a person was at one time living and that he died, and the direct testimony of some of the witnesses is that it was the same Antonio Avocato, although it does not clearly appear that these witnesses were speaking from actual knowledge.
The court would have been authorized to accept a plea of guilty from the defendant of the degree of crime of which he was convicted by the jury. Had he pleaded guilty it would have been a confession on his part that the Antonio Avocato who was buried was the same person upon whom he inflicted the wounds. As it was competent for the defendant to have pleaded guilty to this crime, it was also competent for him -upon the trial to admit that the person whom he was charged with killing was dead, and such admission, if made, would have dispensed with the necessity upon the part of the People of proving the same by other evidence.
It was disclosed by the autopsy that the cause of death was hemorrhage’ of the lungs, due to penetrating stab wounds of the fight lung; that these wounds passed in between the sixth or seventh and eighth ribs ; that there was an incision of -the lung, cutting the arteries, and that this came from knife thrusts. A knife was produced, claimed by the People to be the property of the defendant and the physician who made the autopsy testified that the wounds might have been made with either blade of this knife.
We have, therefore, proof of the death of Avocato; that he came to his death through hemorrhage produced by knife thrusts; and it is uncontradicted that knife thrusts were delivered upon the body of the deceased by the defendant, or by his brother Domenico, or both of them. We have no hesitancy, therefore, in reaching the conclusion that the proof shows that the deceased came to his death at the hands of the defendant, or his brothers, acting in concert with him; This being the result of the evidence, it follows that the defendant was properly convicted of the crime of murder in the second degree, as all the elements which constitute that crime were present and developed by the evidence. If the death of Avocato be regarded as established, serious contention is not made against such conclusion. If, therefore, no errors were committed upon the trial to the substantial prejudice of the defendant, the judgment of conviction should be affirmed. It is claimed, however, that such errors were committed; one in the admission of evidence, and the other in the submission of the case by the learned court to the jury. As to rulings upon the evidence we only find it necessary to consider two questions, in which it is claimed that error was committed.
The first is found in the testimony of the witness Marie Rosso. She testified to the commencement of the dispute between the deceased and Antonio Lagroppo. When the four individuals had passed out through the hall, she went to the street from her apartment and observed the chase of the deceased. She was then asked :
A more serious question perhaps is that which relates to the introduction in evidence of the knife. It is claimed that it was not shown to have been the property of the defendant and was, therefore, highly prejudicial. Upon this subject the first witness called by the plaintiff testified that the defendant, when chasing the deceased, had a knife in his hand and that he saw the blade. The knife was then produced and exhibited to the witness and he stated that he had seen it before; that the defendant once had it out in his barber shop and he saw him sharpening a pencil with it. The witness did make a statement, “ I never saw it in anybody’s possession,”" but he preceded that statement by saying that he had seen it before, and followed it up by the statement of its use by the defendant in his barber shop. Marie Rosso also testified that she saw a knife in the hand of the defendant during the chase of the deceased. Anthony ,T. Berkowitz, a witness called by the defendant, testified that the defendant when chasing the deceased had a knife in his hand, and when the knife was produced he stated, “ Well, I did not exactly see the handle, but the blade was a little bit — about as tall-as that — a little bit taller; about six inches long, it was, where I seen it,” and then he described the manner in which defendant used' it upon the body of the deceased. Further testimony was given by the police officer Seller, who stated that two days after the occurrence the defendant’s wife and another lady came to the station house and gave him some information. The information was sought to be elicited, but was excluded by the court. After this the witness testified that he went into the house next to that occupied by the defendant, and on the top floor, underneath a starch box on the
No objection was interposed to any of this testimony, or. to the ' introduction of the knife in evidence, and if it had been, it would . have been unavailing. The knife was identified as the property of the defendant and the jury were authorized to find under the evi-' dence that he had it open and in his hand when he was engaged in the pursuit of the deceased and that he used it upon him. This, coupled with the character of the wounds and the fact that this instrument woqld produce such wounds, was clearly sufficient to authorize the introduction in evidence of the knife. So far as there are any other questions raised upon the evidence we are unable to find that any of the rulings were erroneous to the prejudice of the defendant.
It is. claimed, however, that the court committed error in the submission of the case to the jury. It is not contended but that the learned judge fairly submitted and defined the various degrees, of the offense of wliifeh the jury were authorized to find the defendant guilty under the evidence. The court’s instruction upon this point was quite comprehensive, both in statement of the offense, as ' defined in the several statutes, and also in the interpretation which has from time to time been placed upon these statutes by judicial decisions. The court did not in any enlarged sense submit to the jury as a question for them to find whether the defendant alone inflicted the wounds which caused the death; but upon this subject the court charged that if the. deceased came to his death by. knife wounds inflicted by one or the other, if done with intent to kill and with premeditation and deliberation, it constituted murder in the first degree, if the evidence satisfied the jury.of such elements beyond a reasonable doubt. The court then charged: “ If you are satisfied that the defendant and his codefendants, his two brothers, were acting with a common purpose, in concert one with the other, and that this purpose was to take the life, of the deceased, then they áre all equally guilty of the crime as charged, no matter who used the
Thé evidence would clearly, have justified a submission of the, question to the jury as to whether or not the wounds which were; found upon the deceased were inflicted by the defendant alone.. Had the court submitted the question upon such theory and had the-, jury convicted the defendant, there is an abundance of evidence to-have sustained the conviction. The fact that the court did not submit this question,-dissociated from the acts of the others, did not at: all tend to the prejudice of the defendant. . Logically such evidence.would have justified a conviction of the defendant of murder in the: first degree, and it may be that the inducing cause for the jury’s finding a lesser degree of the crime for which the defendant was indicted was the fact that the court did not submit the question to the jury in this form. It does not, however, lie in the mouth . of the defendant to make complaint of this fact, as its distinct tendency was to operate to his advantage; consequently in no sense can the defendant be said to be prejudiced by this omission. Besides, the court did state in one. part of the. charge: “ You need only to direct your attention to the inquiry : was this killing felonious ; was it lawful; was it done with intent, by this defendant alone, or acting in concert with others, - for a common purpose; was it done with premeditation and deliberation ? ” It is evident, however, that the court was impressed with the view that the crime was committed by the three, acting in concert, and in the main the. charge was submitted upon such theory.
It is further claimed that the court committed error in the follow-.
. Complaint is further made that the court submitted to the jury the question as to whether the defendant in what he did was acting in self-defense, and.the claim is that there was no theory developed «upon the trial which authorized a submission of this question to the Jury. We may admit the appellant’s contention in this respect; but, surely, the defendant cannot complain because the court submitted a defense in his favor which the evidence did not justify.- Under
The appellant’s further contention in this regard is that the court misled the jury by submitting such question, when it ought to have submitted the question as to whether the defendant and his brothers were in pursuit of the deceased for the purpose of apprehending him on account of the stab wounds which he had inflicted upon the defendant. It may well be answered in view of this contention that if the court was not justified in submitting the question of self-defense, it certainly was not justified from anything that appeared in the evidence in submitting the question as to whether the defendant was pursuing the deceased for the purpose of apprehending him and handing him over to justice. We have the undisputed facts of what was done, and therefrom it appears that there was the pui-suit, the capture and the billing, and such facts did not warrant a submission to the jury of pursuit for the purpose of apprehending the deceased. What the defendant and his brothers concededla did effectually destroys such contention.
The charge respecting good character may be subject to some criticism (People v. Childs, 90 App. Div. 58); but no exception was taken thereto, and, as we are satisfied that the evidence was abundant in support of the verdict, we do not think it can be said that prejudicial error arose therefrom, as the jury were in fact authorized by the charge to consider evidence of good character as applied to the particular case.
The defendant also makes complaint of the charge of the court upon the subject of reasonable doubt. The court charged: “The People are obliged to make out their case beyond a reasonable doubt.” And then the court read a decision of the Court of Appeals as to what constituted a reasonable doubt in this language:
Upon the whole case we are satisfied that the evidence submitted was abundant to show the guilt of the defendant and that his conviction, was justified thereby. Therefore, no injustice has been wrought upon him, and as there are no exceptions which present legal error and nothing which appears to show that any substantial right of the defendant has been prejudiced, we are required to render a judgment of affirmance. (Code Crim. Proc. § 542.)
It follows that the judgment of conviction should be affirmed.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment affirmed.