People v. Sanducci

On the 2d of April, 1908, the defendant was convicted of the crime of murder in the first degree upon an indictment alleging that on the 21st of December, 1907, he inflicted a mortal wound upon the body of one Joseph Dardano with the deliberate and premeditated design to effect his death.

The defendant is an Italian and at the time of the homicide was twenty-three years of age. He came to America in 1905

Dardano and one Albert Mantica were detectives employed by the state excise department to investigate violations of the Excise Law. Both were Italians residing in Albany and pursuant to instructions from the department visited Belfast on the 15th of ¡November, 1907, and went to Decilio’s bakery where they saw the defendant at work baking bread, but had no conversation with him. During the day, in the presence of the defendant, they were served with three bottles of beer by a daughter of Decilio in his place of business. They returned to Albany and reported the facts to the department, when they were again sent to Belfast and on the 20th of December, at tbeir instance, Decilio was arrested for a violation of the Excise Law and arraigned before a magistrate. Evidence was given tending to show that the defendant was present at the arraignment, although he denied it, and several "witnesses, including Mantica, testified that they did not see him on that occasion. Dardano and Mantica remained at Belfast over the night of December 20th and the next morning went to the station of the Pennsylvania - railroad in that village to take the train for ¡Rochester. On their way they passed by Decilio’s bakery, which was between five and six hundred feet from the depot and in plain sight therefrom.

Upon the trial Mantica testified that looking out of the window of the waiting room he saw the defendant and Johnny, a son of Decilio, about fifteen years of age, come over from the bakery and enter the depot. In a short time he noticed that the boy had his eyes on Dardano and himself and was pointing toward them. Thereupon he went over where the

On the other hand the defendant, when sworn as a witness in his own behalf, testified that he saw the detectives on the fifteenth, but paid no attention to them, and did not see them served with beer; that he did not know of Decilio’s arrest, and was not present when he was arraigned; that he did not clean his gun on the morning in question, and went to the station simply to get some freight for his employer, as he had many times during the course of his employment. He tried to get it the day before but failed because it had not yet arrived. After seeing the freight he went to the office for it, but the agent said he was too busy to attend to the matter until after the train left. Thereupon the defendant went

The essential features of the defendant’s testimony were wholly without corroboration. The boy, Johnny, was a witness, but he did not see the shooting. His testimony as to what occurred in the waiting room tended to corroborate the version of Man tica in that regard. The testimony of the defendant that Dardano and Mantica were approaching him in a threatening attitude when he fired the first and second shots was contradicted by that of every other witness who saw the tragedy.

According to the uncontradicted testimony of several witnesses the defendant had carried a revolver for some time before the homicide and was in the habit of going to the railroad station to get freight to use in his employer’s business at the bakery. It also appeared that freight was due and had actually arrived, although the freight agent thought it had been delivered the day before, but he could not say that it had all been delivered. He was of the opinion that some was

delivered to Decilio after the homicide. Two witnesses testified that the reputation of the defendant was good. Several eye-witnesses swore that they did not see either Dardano or Mautica unbutton his coat, throw it back and start toward the defendant, and one of them testified that he observed the body of Dardano after he fell, and that the top button on his coat was buttoned, but the rest were unbuttoned. Mautica denied that either he or Dardano called the defendant names, or unbuttoned their coats and rushed toward him. All the witnesses agreed that the firing was as rapid as possible, but it did not appear whether the revolver was of the self-cocking variety or not.

Even in a capital case, the decision by the jury of all questions of fact is subject to review by us only to the extent of determining whether the evidence fairly and reasonably supports their conclusion upon each of those questions. The credibility of witnesses is necessarily for the twelve jurors who looked into their faces and heard them testify rather than for the seven judges who simply read the printed record of what they said.

In this case there was no question as to the killing of Dardano by the defendant, for he swore to it himself. The controlling question whether the killing Avas done Avith the deliberate and premeditated design to effect death, was for the jury to decide. They could have accepted the statement of the defendant, but obviously they did not believe it. They could have found, and the presumption is they did find, that the defendant followed Dardano up with intent to take his life, which involves premeditation; and that after forming the intent he shot at him four times from behind his back, which involves deliberation. The rapidity of the firing is important only as it measures the time the defendant had to change his mind before he fired the third shot which proved fatal. Each shot was a separate act in execution of the design to kill and as there Avas time to act twice, there.Avas time to think or to deliberate before the fatal shot Avas fired. Repeated shots, blows or acts of violence point toward delib

We cannot set aside the verdict because it was without evidence to support it, or because it was against the weight of evidence, for it is sustained by proof that is sufficient and satisfactory. We see no reason for disturbing the verdict by using our discretionary power in order to prevent injustice, for according to the record before us we cannot say that the decision of the jury was unjust to the defendant.

The most of the exceptions taken during the trial were not argued, but we have examined them all and find none worthy of consideration except those discussed hereafter. One question was argued although it was not raised by any ruling or exception, and its importance, not to the defendant but to the public, requires brief notice.

In certain counties of the state, and among them the county of Allegany, the county judge is permitted to practice law. According to the County Law, the district attorney of any county may employ counsel to assist him in the trial of “a capital or other important criminal action,” provided he first obtains “ the approval in writing of the county judge.” The value of the services rendered by counsel thus employed, when certified by the judge presiding at the trial, is made a county charge. (County Law, L. 1892, chap. 686, § 204.) Upon due application the district attorney was authorized by the county judge of Á llegany county to employ counsel to assist him- in the trial of the defendant. When this authority was conferred nothing Avas said as to what lawyer should be employed, but a few days later the district attorney retained the same person as counsel who, as county judge, had authorized the employment of counsel. Thus the county judge acted officially and personally in the same transaction. He officially authorized a contract to be made, which could not have been made without his approval, and then personally made the contract himself, as one of the parties thereto. As county judge he authorized the retainer and then as a lawyer accepted the retainer himself. While this does not concern the defendant

At the close of the charge the counsel for the People requested the court to instruct the jury “ That in order to constitute murder in the first degree premeditation and deliberation need not both be present.” Thereupon the following colloquy ensued: The Court: “ In the first degree % ” Judge Reynolds : “ It is premeditation or deliberation.” The Court: “ From a deliberate and premeditated design.” Judge Reynolds : “ The other.” The Court: “ Well, that is the second degree.” Judge Reynolds: “ That is the second degree.” The Court: “ From a deliberate and premeditated design. Both are present.” Judge Reynolds : “ That is the request.” The Court: “ One edition has the word ‘ or ’ for the second degree.” Nothing further occurred with reference to the subject. The court did not charge as requested and no ruling was made or exception taken. The counsel for the defendant now urges, although he said nothing upon the subject during the trial, that the request was improper and was calculated to convey a wrong impression to the jury, especially as there was no ruling thereon.

We think the point is not well taken. The body of the charge was unusually full and clear upon the subject of deliberation and premeditation. The jury were repeatedly told that both deliberation and premeditation were essential to constitute the crime of murder in the first degree. After correctly giving the statutory definition of the offense the court proceeded as follows : “ In order to appreciate the force of the definition as given by the statute it is well for you to understand precisely what the law says and means by the use of the term ‘ premeditation and deliberation.’ Both terms must exist. The killing must have been from a deliberate and premeditated design. The killing of a human being with deliberation, without premeditation, or the killing of a human being with premeditation and without deliberation, would not be murder in the first degree.”

After such extreme care on the part of the trial justice to lay down the law on the subject of deliberation and premeditation, we think the jury could not have been misled by the improper request made by the counsel for the People, but not charged by the court, and by the colloquy that followed. The jury could not have misunderstood their duty, but if anything was lacking to make the subject entirely clear, and we do not think there was, the counsel for the defendant should have presented a request to remove the doubt.

The remaining exceptions, worthy of notice, relate to the question of motive, and for convenience we will group them together by quoting all that the record shows upon the subject : “ Mr. Bartlett: I request your honor to charge the jury that, if they fail to find a motive for this crime charged, or if there is any reasonable doubt in their minds as to the existence of a motive for the crime, that the defendant cannot be convicted of murder in the first degree. The Court: No; I decline. Mr. Bartlett: I except to that. The Court: They will consider all the evidence. Mr. Bartlett: I ask your honor to charge the jury that, in their deliberations as to the guilt of the defendant of the crime charged in the indictment, the absence of motive is a very material and important circumstance in 1ns favor, if they find none exists. The Court: Well, that is a matter of reasoning for the jury. I would say, about

The first request upon the subject presented by the counsel for the defendant was properly refused, because it is well established that the crime of murder in either degree may be committed without proof of any motive. (People v. Dinser, 192 N. Y. 80 , 85; People v. Scott, 153 N. Y. 40 , 49; People v. Feigenbaum, 148 N. Y. 636 , 639.)

The second request might well have been charged literally as presented, but this was not necessary provided it was charged in substance, as wfe think it was. The jury were told it was their duty to consider motive as one of the elements in the question whether the defendant was guilty beyond a reasonable doubt;. that every reasonable doubt must be resolved in his favor and that the question of motive was

When the defendant admits the killing and no question of justification, accident or sanity is involved, the only elements of the crime remaining are deliberation and premeditation, both of which must be proved to have existed beyond a reasonable doubt. The last remark of the court upon the subject of motive was that the jury should consider it in reaching a conclusion upon the question of deliberation and premeditation. Furthermore, the earlier direction that the jury should consider motive in deciding whether the defendant was guilty beyond a reasonable doubt, made the subject of motive applicable to every branch of the case.

The last request involved the proposition that motive is within the statutory definition of murder in the first degree. This was obviously improper, as the statute is silent upon the subject and the authorities are uniform in holding that motive is not an essential feature of the crime of murder either in the first or in the second degree. (People v. Dinser, supra.)

We find no error in the record calling for reversal, and the judgment of conviction must, therefore, be affirmed.

Gray, Edward T. Bartlett, Haight, Werner, Hisoook and Chase, JJ., concur.

Judgment of conviction affirmed.