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People v. Priori

164 N.Y. 459 Court N.Y. Decision date 1900-11-20 English

Delivered by Martin, J.

Contents

Majority

p. 459
The People of the State of New York, Respondent, v. Lorenzo Priori, Appellant.

Headnote

1. Murder — Questions of Fact. The question of the credibility of the People’s witnesses in a trial for murder, and the question whether the decedent was killed by the defendant, and if so, whether the act was committed under circumstances constituting the crime of murder in the first degree, are clearly for the jury, where, if such witnesses are to be believed, there is not only ample proof of circumstances tending to show that the decedent was killed by the defendant, but there is direct proof to the same effect.
3. Duty of Court to Sustain Privilege of Witness. Where, under the circumstances, the trial court is justified in informing a witness called by the defendant, of his constitutional privilege to decline to answer any question that would tend to incriminate or degrade him, and it is manifest that he personally declined to answer upon such grounds, it is its duty to sustain his privilege, if the evidence on his examination as a witness would either tend to incriminate Mm or disclose a link in the chain of testimony which might convict him of crime, and he is not required to explain how he might be incriminated by the answer; and before the defendant can claim its ruling to he erroneous, he must at least show such facts as will render it clear that an answer to the question propounded would not incriminate or disgrace the witness.
3. When Error in Sustaining Witness’ Claim of Privilege not Prejudicial. Sustaining the claim of privilege, interposed by a witness brought into court from prison, to a question asked him by defendant in a murder trial, as to whether he heard a witness for the state say to defendant while in the. prison that he knew nothing about the case, even if error, is not ground for reversing a conviction where the witness for the state had admitted that he made such a statement to the defendant, and that fact is undisputed.
4. Declarations by District Attorney as to the Law of the Case. The misconduct of the district attorney in assuming to state the law upon the question of premeditation and deliberation, and in persisting in making such statements after the court had instructed him not to continue the discussion, is not sufficient cause for reversal of a conviction, where the court distinctly and plainly instructed the jury upon the question of premeditation and deliberation, and also instructed it to disregard any matter that had been stated as to the law, or what the law should be, and any statements made in regard to any opinions or decisions of the courts, except such as should be made by the trial judge.
5. Improper Comments by District Attorney. Statements by the district attorney in Ms address to the jury as to the law of defendant’s
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native country, to the effect that the crime of murder was less seriously punished in that country, are rendered harmless, and should be disregarded by the Court of Appeals, where the district attorney withdrew his remarks on that subject, when the defendant objected to them, and the court expressly directed the jury to disregard them.
6. Comments on Defendant’s Failure to Testify. Any error. resulting from comments by the district attorney, upon the failure of defendant in a murder trial to testify in his own behalf, is cured where the trial court, at the defendant’s request, calls the attention of the jury to the provisions of section 393 of the Code of Criminal Procedure, and charges them that while the defendant in all cases may testify in his own behalf, still, his neglect or refusal to do so does not create any presumption against him.
7. Misconduct of Jury in Murder Trial —When Refusal of New Trial Justified. The trial court is justified in denying an application for a new trial made by defendant in a murder trial, so far as it is based upon the ground that during the trial one of the jurors had a copy of the Penal Code and Code of Criminal Procedure which he read and exhibited to some of his fellows, where it is obvious that he obtained the book inadvertently, and as soon as the attention of the prosecution was called to the fact the hook was taken away from him, and the defendant omitted to raise any objection, or make any request to the court to specially instruct the jurors to disregard anything that had been read, and it is not alleged or set forth what was read, or that it had any connection with, or bearing upon, the case, or in any way affected the verdict, and the court in effect charged the jury that it was to receive the law as the court declared it, independent of any knowledge it might otherwise acquire.
8. New Trial on Ground of Newly-discovered Evidence. An application for a new trial in a murder case, upon the ground of newlydiscóvered evidence, may properly he refused where the new evidence is not such as requires the trial court to hold that it would probably change the result if a new trial were granted, or where there is not sufficient proof that it could not have been discovered before the trial by the exercise of due diligence.
(Argued October 5, 1900;
decided November 20, 1900.)
Appeal from a judgment of the Supreme Court, rendered at a Trial Term for the county of ISTew York April 28, 1899, upon a verdict convicting the defendant of the crime of murder in the first degree, and from an order denying a motion for a new trial.
The facts, so far as material, are stated in the opinion.
p. 461
Bankson T. Morgan and Samuel Seabury for appellant.
The court erred in not compelling the witness Di Angelo to testify. (2 Story on Const. § 1792; 4 Black. Comm. 359, 360; People v. Willard, 92 Cal. 482 ; Aiken v. State, 25 S. W. Rep. 840 ; 1 Thomp. on Trials, § 306; People v. Mather, 4 Wend. 229 ; People v. Bodine, 1 Den. 281 ; Ward v. People, 6 Hill, 144 ; People v. Carroll, 3 Park. Cr. Rep. 73 ; Southard v. Rexford, 6 Cow. 254 .) A witness can only claim his privilege when the answer to the question asked would naturally and ordinarily have a tendency to incriminate or degrade him. (Youngs v. Youngs, 5 Redf. 505; Friess v. N. Y. C. & H. R. R. R. Co., 67 Hun, 205 ; People ex rel. v. Kelly, 24 N. Y. 74 .) The remarks of the prosecuting officer in his closing address to the jury were unfairly prejudicial to the defendant. (Berry v. State, 10 Ga. 511 ; Bullock v. Smith, 15 Ga. 395 ; State v. Williams, 65 N. C. 505 ; Tucker v. Henniker, 41 N. H. 317 ; Bagully v. M. J. Assn., 38 App. Div. 522 ; Cole v. F. B. C. Co., 159 N. Y. 59 ; People v. Fielding, 158 N. Y. 542 .) The counsel for the prosecution was erroneously allowed to argue and mis-state the law to the jury. (1 Thomp. on Trials, §§ 942, 980; State v. Reed, 71 Mo. 200 ; People v. Majone, 91 N. Y. 211 .) The counsel for the People improperly and persistently commented, directly and indirectly, upon the failure of the defendant to testify in his own behalf in such a manner as to prejudice the jury against the defendant because of his failure to testify. (Code Crim. Pro. § 393; Dawson v. State, 24 S. W. Rep. 414 ; People v. Fielding, 158 N. Y. 542 ; Angelo v. People, 96 Ill. 209 ; Koelges v. G. L. Ins. Co., 57 N. Y. 638 ; Williams v. B. E. R. R. Co., 126 N. Y. 96 ; McKeever v. Weyer, 11 Wkly. Dig. 258 ; Halpern v. N. E. R. R. Co., 16 App. Div. 90 ; Bagully v. M. J. Assn., 38 App. Div. 522 ; People v. Corey, 157 N. Y. 332 .) The fact that some of the jurors during the trial read a copy of “ Silvernail’s Penal Code and Code of Criminal Procedure,” annotated, constituted misconduct by which a fair and due consideration of the case was prevented. (Jones v. State, 89 Ind. 82 ; Harrison v. Hance, 37 Mo. 185 ; Alm
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v. Andrews, 9 Ohio C. C. 591 ; Burrows v. Minner, 1 C. & P. 310; Merrill v. Nary, 92 Mass. 416 ; State v. Smith, 6 R. I. 33 ; Newkirk v. State, 27 Ind. 1 ; Johnson v. State, 27 Fla. 245 ; People v. Hartung, 4 Park. Cr. Rep. 256 , 314; People v. Draper, 28 Hun, 1 .) The lower court erred in not granting ' defendant’s motion for a new trial upon the ground of newly-discovered evidence. ( W. S. P. Co. v. Barclay, 14 N. Y. S. R. 879; Holmes v. Rogers, 32 N. Y. S. R. 470; Guyot v. Butts, 4 Wend. 579 .)
Cha?'les F. Le Barbier for respondent.
The defendant’s motion for a new trial and in arrest of judgment on the ground of misconduct of the jury was properly denied. (People v. Draper, 28 Hun, 1 ; People v. Wilson, 8 Abb. Pr. 137 ; People v. Gaffney, 14 Abb. Pr. [N. S.] 36; People v. Kelly, 2 N. Y. Cr. Rep. 15 ; People v. Schad, 58 Hun, 571 .) The defendant’s motion for a new trial and in arrest of judgment on the ground that the closing address of the district attorney to the jury was unfairly prejudicial to the defendant was properly denied. (2 Ency. of Pl. & Pr. 722; People v. Fielding, 158 N. Y. 542 ; People v. Greenwall, 115 N. Y. 526 .) The defendant’s motion for a new trial on the ground of newly-discovered evidence was properly denied, for the reason that it does not appear that the result would have been different than what it was, even had the newly-discovered evidence been produced upon the trial. (People v. Hovey, 30 Hun, 354 ; 93 N. Y. 654 ; People v. Shea, 16 Miss. 111 ; Case v. People, 6 Abb. [N. C.] 151; People ex rel. v. Sup. Ct., 10 Wend. 285 ; Williams v. People, 45 Barb. 201 ; People v. Mack, 2 Park. Cr. Rep. 673 ; People v. McGuire, 2 Hun, 269 .)

The judgment appealed from was entered upon the verdict of a jury rendered upon a trial in the Supreme Court, held in the city and county of New York. •At the close of the evidence of the prosecution the defendant asked the court to withdraw from the consideration of the jury

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the charge of murder in the first degree upon the grounds that the People had not proved facts sufficient to warrant the jury in finding that the defendant liad committed that crime, and “ that the People have not proved facts sufficient to sustain the crime beyond a reasonable doubt.” This motion was denied and the defendant excepted. At the close of all the testimony the defendant’s counsel again moved to take from the consideration of the jury the charge of murder in the first degree upon the same grounds, and also upon the additional grounds “ That the preponderance of evidence shows that the defendant was not guilty of said crime,” and “ That the testimony given by the People to sustain the burden of proof of said crime is wholly or in part illegal.” He also moved' the court to direct the jury to acquit him of the crime of murder in the second degree, and of the crime of manslaughter. These motions were all denied, and the defendant excepted.

The first question presented by the defendant’s exceptions relates to the sufficiency of the evidence to justify the submission to the jury of the question of the defendant’s guilt of the crime charged in the indictment. A careful examination of the record renders it obvious that the proof was sufficient to require the court to submit that question to the jury. If the People’s witnesses were to be believed, there was not only ample proof of circumstances which tended to show that the decedent was killed by the defendant, but there was direct proof to the same effect.

Under that evidence the question of the credibility of witnesses and the question, whether the decedent was killed by the defendant, and if so, whether the act was committed under circumstances constituting the crime of murder in the first degree were clearly for the jury. (People v. Kerrigan, 147 N. Y. 210 ; People v. Youngs, 151 N. Y. 210 , 216; People v. Kelly, 113 N. Y. 647 , 648; People v. Fish, 125 N. Y. 136 , 144; People v. Constantino, 153 N. Y. 24 , 35; People v. Ferraro, 161 N. Y. 365 , 376.)

Ho good purpose can be served by reviewing or stating in detail the facts and circumstances established by the evidence,

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as there can be-no reasonable doubt that.the proof was sufficient to present a question of fact as to whether the defendant was guilty of the crime of which he was convicted. Hence we content ourselves with the statement that, after a careful examination of all the evidence, we have reached the conclusion that it was sufficient to justify the court in submitting that question to the jury and to uphold its verdict.

Other questions are presented by certain exceptions taken upon the trial and by the action of the trial court in denying the defendant’s motions for a new trial based both upon alleged legal errors and upon the ground of newly-discovered evidence.

Upon the trial one Messina, called as a witness for the People, on his cross-examination, testified that he visited the defendant while in pirison, and admitted that he stated to him that he would not testify against him because he saw.nothing. The defendant afterwards called as a witness one Di Angelo who, at the time of that conversation, was' a prisoner in the Tombs under an indictment for the crime of murder in the first degree, and who was brought into court to testify. The court thereupon directed that his attorney should be present to advise him in regard to his rights as a witness. Afterwards the attorney stated to the court that he had seen the witness and informed him as to his rights. The witness then declined to be sworn. The court, however, directed him to take the oath, and stated that it would see that his rights were preserved. It then informed him that he could decline to answer any question that might be put to him. It appears to have been conceded that he was under indictment for the crime of murder in the first degree; that he wras in actual confinement, and w-as brought into court by its order. The counsel for the defendant then proceeded to examine him. The court in effect instructed the witness that he might decline to answer any question where the answer would tend to incriminate or degrade him. The defendant’s questions were as follows: “You are at piresent a prisoner in the Tombs ? ” “ Did you, some time during the month of January, 1899, in Cell 69, meet one Antonio Messina and Mrs. Priori, and at the time the defendant Priori

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was in the same cell ? ” “ Did you on that occasion hear Antonio Messina say that he knew nothing about the case in which Priori was defendant, or anything to that effect ? ” The witness declined to answer any of these questions upon the ground that the answer would tend to incriminate or degrade him. The defendant’s .counsel then asserted that his 'refusal was not the voluntary act of the witness, but resulted from a statement by the court, and for that reason an exception was taken. To this the court replied: “ I asked him if he put his ground upon his constitutional rights, putting his constitutional rights to him. If you wish an exception to that you may have it.” The defendant’s counsel still desired to have his-exception noted, and the court then remarked : “ I informed him of his constitutional rights, and if he places his refusal on that, I have got to sustain it.” To that ruling an exception was taken. The defendant now contends that the privilege of declining to answer these questions upon the ground that the answers would degrade or incriminate the witness, was, personal to him, and that it was error not to require him to answer. The contention that the privilege was personal to the witness is perhaps correct, but, under the circumstances disclosed, the court was justified in informing the witness of his rights, and when thus informed, it is manifest that he personally declined to answer upon the grounds stated.

Assuming, as I think we must, that the witness personally claimed his privilege, the question is whether the court was justified in according it to him. Whether such privilege should be allowed or disallowed rested somewhat in the discretion of the court. Where a court can discover from the circumstances that the giving of evidence upon a certain subject may tend to incriminate or disgrace a witness, it has the right and it is its duty to sustain his privilege. Before the defendant could claim that this ruling was erroneous he was at least required to show such facts as would render it clear that an answer to the questions propounded would not incriminate or disgrace the witness. We think the record is insufficient to establish that fact. It was for the court to determine

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whether, under all the circumstances, the witness should be accorded the protection and privilege he invoked. It does not follow that the witness was not entitled to his privilege, because, upon the face of the question when unexplained, it did not appear that the answer would have the effect claimed. He was entitled to this privilege if the evidence or his examination as a witness would either tend to incriminate him or disclose a link in the chain of testimony which might convict him of crime, and was protected without being required to explain how he might be incriminated by the answer. We think, under all the circumstances, whether this witness should have been required to answer the questions propounded was for the trial court to determine and rested largely in its discretion. Where such a privilege is claimed the courts have recognized the impossibility in most cases of anticipating the effect of an answer. (People ex rel. Taylor v. Forbes, 143 N. Y. 219 , 231.)

Moreover, the obvious purpose of the defendant’s interrogatories was to prove that ‘the witness Messina, at the time referred to, said that he would not testify against the defendant because he saw nothing.' That fact had already been • proved by the witness Messina and it was undisputed. Therefore, even if it were conceded that the defendant was entitled to prove what occurred in the Tombs when Messina was there and that he said he would not testify against the defendant because he knew nothing, it could not have affected the result or the crédibility of the witness. The witness himself having sworn to that fact which was undisputed, the defendant had the benefit of the evidence as fully as though it was' also proved by the witness called. We are, therefore, of the opinion that the rulings of the court upon this subject did not constitute error which would justify us in disturbing the judgment below.

The defendant also claims that the remarks of the district attorney in his address to the jury were unwarranted, prejudicial to him, and of such a character as to require the granting of a new trial. We have carefully examined them as set forth in the record, but are unable to find any statement which

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was unwarranted, or was not a fair argument, comment or appeal to the jury except in the respects hereinafter specified. “It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve, and it ought not to be narrowed by any close construction, but should be interpreted in the largest sense. * * * The jury system would fail much more frequently than it now does if freedom of advocacy should be unduly hampered and counsel should be prevented from exercising within the four corners of the evidence the widest latitude by way of comment, denunciation or appeal in advocating his cause. This privilege is not beyond regulation by the court. It is subject to be controlled by the trial judge in the exercise of a sound discretion, to prevent undue prolixity, waste of time or unseemly criticism. The privilege of counsel, however, does not justify the introduction in his summing up of matters wholly immaterial and irrelevant to the matter to be decided, and which the jury have no right to consider in arriving at their verdict.” This is the language of Judge Andrews in Williams v. Brooklyn El. R. R. Co. ( 126 N. Y. 96 , 102). Applying this rule as well as that stated in the case of People v. Fielding ( 158 N. Y. 542 ) it is manifest that the district attorney did not transcend the proper limits of advocacy in' his address to the jury, except in the two respects which we will now consider.

First, while summing up, the prosecuting officer, in discussing the question of premeditation and deliberation, commenced to state what had been decided upon that subject by this court. To this the defendant’s counsel objected upon the ground that it was a question of lawT and was incorrectly .stated, when the court remarked that it would at the proper time instruct the jury as to the law upon the subject. The district attorney, however, persisted in declaring what the law was and what had been decided, whereupon the court instructed the jury that they should take the law as the court laid it down and that anything that was said in regard to it

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by counsel on either side the jury were to disregard, except as it was restated by the court. To that the defendant excepted. The counsel for the People still continued to call the attention of the jury to the law, when the court said, “ I would not discuss it,” adding that remarks in regard to the law were to be made by the court. The district attorney, however, still persisted in stating the law to the jury, notwithstanding the advice of the court to desist from further arrogating to himself the duty which obviously rested upon it and not upon the district attorney. To this the defendant again objected, and the court replied that he was entitled to the objection, adding that it was the discussion only of settled legal questions, that they were matters for the court and not for the counsel, and that the inferences might be as claimed, but that the law was for the court. We are unable to justify the course pursued by the district attorney in disregarding the proper suggestions of the court. Tet, we think his action does not present reversible error, because the court distinctly and plainly instructed the jury upon the question of premeditation and deliberation, and also instructed it to disregard any matter that had been stated •as to the law or what the law should be, and any statement made in regard to any.opinion or decision of the courts, except such as should be made by the trial judge. Here was not only a plain statement of the law upon the subject as to which the district attorney sought to instruct the jury instead of permitting the court to do so, but it also directed the jury to disregard any statements which had been made as to what the law was or as to the opinion or decision of any court, except so far as the trial court laid down the law in its charge. Therefore, while the action of the district attorney was not seemly or to be'commended, yet, we think it was insufficient to constitute an error which affected the substantial rights of the defendant. It was at most technical, and under section 542 of the Code of Criminal Procedure w'e are required to' disregard it.

Second. The only other respect in which the district attorney transcended proper limits in his address was in his statement as to the law of the defendant’s native country. His

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remarks upon that subject were as follows: “ It was said by the gentleman who preceded me that the difficulty to which reference was made by the testimony in this case was of too trifling a character to consider it a motive. There is nothing in that contention. These people are impulsive. Upon the slightest provocation human life is sacrificed. Without desiring to prejudice you against him because of his race — and I beg you not to be prejudiced against him because of that — yet that regard for human life is not with them as it is with us. Here when the divine command, ‘ Thou shalt do no murder,’ is transgressed, a life must be expiated for a life, but in the kingdom from whence he comes to murder there simply means a penalty for twenty years in a prison.” There was no proof in the case to sustain those statements, and if uncorrected or not withdrawn they might have justified a reversal. But examining the record, we find that when the defendant objected to them the district attorney withdrew his remarks upon that subject and the court expressly directed the jury .to disregard them. We think this was a sufficient withdrawal and direction by the court to remedy or remove any error flowing from the statements referred to, that the error, if any, was merely technical and should be disregarded upon this appeal. (Chesebrough v. Conover, 140 N. Y. 382 , 388; Marks v. King, 64 N. Y. 628 ; Platner v. Platner, 78 N. Y. 90 ; Gall v. Gall, 114 N. Y. 109 , 121; Holmes v. Moffat, 120 N. Y. 159 ; Blashfield v. E. S. Tel. c& Tel. Co., 147 N. Y. 520 , 527; People v. Schooley, 149 N. Y. 99 , 103; People v. Wilson, 141 N. Y. 185 , 191; Greenfield v. People, 85 N. Y. 75 , 90; Cole v. Fall Brook Coal Co., 159 N. Y. 59 .)

It is further contended that the district attorney improperly and persistently commented directly and indirectly upon the failure of the defendant to testify in his own behalf, and that such comments were prejudicial to him. This criticism is not justified by the record. In that respect he kept well within the evidence, and his comments were proper. Moreover, at the defendant’s request the court called the attention of the jury to the provisions of section 393 of the Code of Criminal *

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Procedure, and charged that while the defendant in all cases may testify in his own behalf, still, that his neglect or refusal to do so does not create any presumption against him. This, under the doctrine of Ruloff v. People ( 45 N. Y. 213 ), corrected any error of the nature claimed, if it existed.

Another contention of the defendant is that during the trial one of the jurors had a copy of the Penal Code and Code of Criminal Procedure, which he read and exhibited to some of his fellows. As soon, however, as the attention of the prosecution was called to the fact, the book was taken from the juror. The defendant omitted to raise any objection, or make any request to "the court to specially instruct the jurors to disregard anything that had been read. No attention was given to this incident, although known to the defendant, until the trial was ended and an adverse decision had been reached. If he regarded this matter as prejudicial to him, good faith required that he should at least call the attention of the court to the fact so that any effect, or supposed effect, of the act might be corrected and removed .by proper instructions from the bench. This was not done, presumably because the defendant, like the prosecution, did not regard it of sufficient consequence t.o require any special action, or think that it in any way prejudiced the rights of the parties. In the latter conclusion we concur. This transaction was made one of the grounds upon which the defendant, before sentence, moved for a new trial. What was read, or that it had any connection with or bearing upon this case, or in any way affected the verdict, is not alleged or set forth. In People v. Draper ( 28 Hun, 1 ), where the jury obtained possession of a copy of the Revised Statutes while deliberating upon their verdict, it was held -that their obtaining it was an irregularity but did not vitiate the verdict, unless it.was shown that the defendant was prejudiced thereby. The cases cited in the opinion in that case seem to justify the conclusion there reached. We are of the opinion that while reading the Code by the jurors may be regarded as irregular and as misconduct on their part, yet, as there is no proof that it in any way affected the result

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or was prejudicial to the defendant, the court below was justified in denying his application for a new trial so far as it was based upon that ground. None of the jurors called for books, and none were furnished them. It is quite obvious from the affidavits that the book they obtained was inadvertently left within their reach, without any design that it should come to their hands, and there is no proof as to what portion of either the Penal Code or Code of Criminal Procedure they read or in any way discussed. Under these circumstances, we think the action of the jurors did not constitute such an irregularity or such misconduct as required the court to grant a new trial. (People v. Gaffney, 14 Abb. Pr. E. [N. S.] 36.)

There is still another circumstance which renders it apparent that no substantial injury to the defendant could have resulted from this action of one or more of the jurors, which is, that the court in effect charged the jury that it was to receive the law as the court declared it, independent of any knowledge it might otherwise acquire.

The only other ground upon which the defendant bases this appeal is that the court below erred in not granting a new trial upon the ground of newly-discovered evidence. The affidavit upon which this application was based was to the effect that on Sunday, December 11, 1898, the day of the homicide, at about six o’clock'?. m., one Napoleone Dei Medici, was on Broome street between Sullivan and Thompson streets, and within about ten feet of the stoop to the drug store at No. 530 Broome street; that he heard two pistol shots fired from behind him ; that he looked around and saw a short man run down the steps of No. 526*2- Broome street and jump upon a car then passing through that street; that at the time the shots were fired he saw Lorenzo Priori standing on the stoop in front of the drug store, and that he knew that Priori «did not fire the shots that he heard ; that after hearing the shots he went on his way towards Sullivan street; that when he saw the defendant he had his back towards Thompson street and had both of his hands in his pockets; that he had known the defendant by sight for several years

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before the day of the shooting; that he did not at that time remember the defendant’s name; that he saw two policemen after the shooting come from Sullivan street to Broome street, but did not wait to see what happened; and that the defendant and the person whom he saw run down the steps and get upon the car were the only persons he saw upon the street at the time of the shooting.

The rule applicable to the determination of the .question whether a new trial should be granted upon the ground of newly-discovered evidence is quite' correctly stated in the appellant’s brief as follows:

“ Newly-discovered evidence in order to be sufficient must fulfill all the following requirements : 1. It must be such as will probably change the result if a new trial is granted ; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence.”

If it be assumed that this evidence has been discovered since the trial, that it would be material to the issue, would not be cumulative, nor merely impeach or contradict former evidence, still, we think it is not such as required the court below to hold that it would probably change the result if a new trial was granted. Nor do we think there was sufficient proof that it could not have been discovered before the trial by the exercise of due diligence. Under these circumstances, assuming the law as stated by the defendant, the trial court was justified in denying this motion, and its action in that respect must be affirmed.

Having thus briefly stated the views of this court upon all the questions raised by the defendant, and having found no error which would justify the court in disturbiflg the judgment appealed from, it follows that it should be affirmed.

Parker, Oh. J., O’Brien, Bartlett, Haight, Vann and Landon, JJ., concur.

Judgment of conviction affirmed.

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