People v. Powell

Judgment of conviction, Supreme Court, Bronx County, rendered October 28, 1970, unanimously reversed, on the law, and vacated, and the indictment dismissed as to him. Defendant-appellant was indicted with two others for homicide of one Henderson, a minor dealer in drags, said to have resulted from a quarrel between Henderson and the other three. The two codefendants, who had made self-inculpatory statements, pleaded guilty during trial, and defendant’s case was severed on his application and retried; the result was conviction of manslaughter. Proof at defendant’s trial was entirely circumstantial. The ancient rule is: “ In determining a question of fact from circumstantial evidence * * * the hypothesis of * * * guilt should flow naturally from the facts proved, and be consistent with them all * *■ * [and] * * * The evidence must be such as to exclude, to a moral certainty, every hypothesis but that of * * * guilt * * * [and] * * * be inconsistent with * * * innocence.” (People v. Bennett, 49 N. Y. 137 , 144-145.) The People’s evidence came primarily from one witness, whose testimony is briefly summarized: looking out of her window one evening, she saw the deceased and the other three in an apartment across the street; she knew all four participants; though unable to hear them, she gathered from their gestures and attitudes that they were engaged in an argument; the deceased left the others and crossed the street and entered his home building, next door to that of the witness; she saw the others follow and, while they were on their way, heard one — unidentified — say: “He ain’t going to get away with it.”; the three entered the building next door, whence she heard two shots, and saw the two codefendants flee the scene at once; while she described the hat worn by defendant, and said that a hat found by police at the scene “ look like it,” she repeated several times that she could not say that it was that of defendant. The deceased was found dead of