127 N.Y.S. 204 | N.Y. App. Div. | 1911
On November 2, 1909, Guiseppe Caeáee was shot and grievously wounded by Pasquale Albano. Defendant was indicted for the crime of attempt to commit murder in the first degree upon the theory that, although he did not fire the. shot, he aided or abetted Albano, or counseled, commanded, induced or procured him to commit the criminal act. (Penal Law, § 2.)
Appellant contends that an indictment will not lie for an attempt to commit murder in the first degree when the acts charged constitute another consummated crime. There does not seem to be any exception which clearly presents this question ; but as there must be a new trial, and the point was discussed by both counsel, we should consider it. At common law an attempt to commit murder was indictable as a misdemeanor. (3 Russell Crimes [6th ed.], 277; 21 Cyc. 776.) The section of' the Penal' Law defining attempts to commit crimes (Consol. Laws, chap. 40 [Laws of 1909, chap. 88], § 2), and the one providing for the punishment thereof (Id. § 261), are each sufficiently broad to include this. The latter section provides that “A person who unsuccessfully attempts to commit a crime is indictable and punishable, unless otherwise specially prescribed by statute, as follows: 1. If the crime attempted is punishable by the death of the offender, * * * the person convicted of the attempt is punishable by imprisonment for not more than twenty-five years.”- Under our statute there are but two crimes punishable with death, murder in the first degree (Penal Law, § 1045) and treason against the State. (Id. § 2382). The latter crime, as distinguished from treason against the United States, is so rare that I have been able to find but one reported case in which an indictment was found, and in that case it was quashed and the prisoners discharged. (People v. Lynch, 11 Johns. 549.) It would seem improbable, in the absence of clear expression thereof, that* the Legislature intended to include the rare and exclude the more common crime. If I understand the argument of the learned counsel for the appellant, it amounts to this f Conceding that the defend-
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I do not think the argument sound; To learn what constitutes a criminal attempt to commit murder in the first degree, resort must be had to sections 2 and 1044 of the Penal Law. Section 261 relates to the procedure respecting and the punishment for attempts to commit crime, rather than to definitions of the acts constituting the crime of attempts. (People v. Mills, 91 App. Div. 331, 333 ; affd., 178 N. Y. 274; Penal Code, § 686.) It "will be observed that the section contains the word “indictable” as well as “punishable.” I think, therefore, that the fair construction of section 262 is that, although a person may have been indicted for an unsuccessful attempt to commit one crime, such indictment will not furnish immunity from indictment for another and different crime, actually accomplished in connection therewith, and the People may elect for which crime he shall be placed on trial, and, if convicted, punished. This would seem to be in harmony with the provisions of the statute relative to an indictment for attempted crime where it appears during the trial that the'attempt was not unsuccessful, but that the crime attempted 'was consummated. (Penal Law, § 260.) In such a case the court may, in its discretion, proceed with the trial under the'indictment for an attempt, or discharge the jury and direct defendant to be tried for the consummated crime.
If it should be urged that such construction would involve an invasion of constitutional rights by placing a man twice in jeopardy for the same offense (N. Y. Const. art. 1, § 6), it may be said that such question cannot arise until after the finding of a second indictment, and it will be sufficient to meet the question then.
If the shot had resulted fatally, to convict Albano of murder in the first degree upon the ground that the killing was committed from a deliberate and premeditated design to effect the death of the person killed, the intent to bill might have keen found from the use of a deadly weapon, and the result produced. (People v. Conroy, 97 N. Y. 62, 77.) It may be that if he had been indicted.for attempt to commit murder, similar evidence would have been sufficient. (Jackson v. State, 94 Ala. 85; Walls v. State, 90 id. 618; Crosby v. People, 137 Ill. 325; Jeff v. State, 37 Miss. 321.) But mere intent to.commit a crime' is not sufficient unless accompanied by some overt act. (People v. Sullivan, 173 N. Y. .122.) The overt act in this case was the use of the pistol. To convict the defendant as a principal in this case there must be evidencie that he aided or abetted, counseled, commanded, induced or procured Albano to commit this overt act. "While there is some evidence in the case that he aided and abetted him in an effort to obtain money from Cacaee by threats, I have been unable to find any evidence that would indicate that he aided, abetted, counseled, procured or persuaded him to use his pistol to enforce compliance, or that he ever knew of such intent on Albano’s part. Whether there was evidence sufficient to justify submission to the jury of the question of def endant’s guilt upon the ground that, when the shot was fired, he was aiding and abetting Albano in the commission of the crime of extortion, whether the evidence as to such crime amounted to more than verbal threats, in which case it would not be a felony (People ex rel. Perry v. Gillette, 200 N. Y. 275) or whether there was evidence sufficient to bring his acts within the other ' definition hereinbefore, referred to. of murder in the first degree,
We might suspend further discussion of this case but for the fact that upon the argument of this appeal counsel for the appellant pressed upon our attention three errors alleged to have been committed during the trial, each of which lie contended was sufficient to require a reversal of the judgment. As there must be a new trial, we will consider these.
The first arises in connection with a view of the premises where the shooting was done. The record discloses that at the close of the oral testimony the court adjourned to meet at the premises where the shooting occurred, that the court there resumed its session, the county judge being present and presiding; that there were also present the district attorney, the defendant, his counsel, the court stenographer, and four court officers, although but three of such officers appear to have been designated to accompany the jury. Ho testimony was there taken, and after the view was completed, instead of returning to the court house, the trial of the case was formally adjourned until the next day, and then resumed at the county court . house. This practice was irregular. (Code Crim. Proc. §§ 411, 412.) But, although irregular, we do not deem it fatal error, for the reason that the view of the premises is not a part of the trial of the action. (People v. Thorn, 156 N. Y. 286.) If it were, then a session of the court was held contrary to the provisions of the statute respecting the place of trial. (County Law [Consol. Laws, chap. 11; Laws of 1909, chap. 16], § 42; Greater N. Y. Charter [Laws of 1901, chap. 466], § 1586.) Except under the conditions specified in the Jndiciary Law (Consol. Laws, chap. 30 ; [Laws of 1909, chap. 35], §§ 9, 10), a judge of a court of record is not permitted, either for his. own convenience or for any other pur- . pose, to hold a term of court at his residence, or at any other place than that designated in accordance with the statute. (People v. Thorn, supra, 297.) Inasmuch as this view constituted no part of the trial, the fact that the learned county judge attempted to hold a session of the court contrary to the statutory provisions was harmless error.
The second objection urged relates to the admission of certain '
There is not sufficient in this conversation to identify these as the letters referred to, nor is there any evidence that these were the only letters received by Cacace at about that time from any person. 'Defendant denied any knowledge of or connection with the letters or the sending of them. We think that they were incompetent. (Nichols v. Kingdon Iron Ore Co., 56 N. Y. 618.) The summing up of the district attorney is made a part of this record. The great importance which he attached to the letters as appears therefrom ■ warns us that we cannot safely overlook .so grave an error. ■
The third alleged error also seems to us to be fatal. Defendant took the stand in his own behalf. Under cross-examination he was asked by the district attorney whether he had not been convicted of the murder of a woman in Italy on the 16th day of April, 1903, and sentenced by the-Court of Assize of Naples to ■ imprisonment for the term of more than eighteen years. He was asked whether he did not kill a woman on the bark Pietta; whether there has not been correspondence between the Italian government, or Prime Minister of Italy and the Secretary of State of the United States, relative to his return to Italy to serve his sentence of eighteen
The defendant denied his guilt. Mo attempt was made on the part of the learned district attorney to establish either of the facts suggested by his innuendoes. But in summing up the case he said : “He denied that he had been convicted of murder and of larceny (sic) twice in Italy. Mow, you know how these- foreign governments keep the records from the day of birth until the day of death, and you can determine for yourselves whether you believe his denial or whether all of these records are false.” Defendant’s counsel: “ I wish to interrupt and to take an exception upon the record. There is no proof of any records before the jury. There were no records introduced in' evidence.” The district attorney : “ There was some examination of this defendant upon correspondence between our Secretary of State and 'the Minister of Italy.” Defendant’s counsel: “ Mot introduced in evidence.” The district attorney: “ Mo, but they are in a way on the cross-examination of this defendant, and they are mentioned in the record. Therefore I had a right to mention them here.” The learned county judge presiding at the trial, instead of rebuking the district attorney for his unjustifiable conduct, simply remarked, when defendant’s counsel protested, “ The exception is noted,” and allowed the trial to proceed. From this the jury might readily infer
The judgment of conviction must be reversed, and a new trial granted.
Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.
Judgment of conviction of the County Court of Kings county reversed, and new trial ordered.