People v. Marendi

On the evening of February 5,1914, James O’Connell was shot, while peaceably walking along Hoyt street in the borough of Brooklyn. He died from the effects of the wound on February 14, 1914. For that homicide the defendant upon" sufficient evidence has been convicted of murder in the first degree. I shall review the evidence only as it bears on the law points presented by the record.

The theory of the People was that shortly before the shooting of O’Connell the defendant had shot 'Edward Murtha, a police officer, who was searching him for concealed weapons; that O’Connell got in the way of his flight from the scene^ of that crime, and that to effect his escape he shot O’Connell with the deliberate and premeditated design to kill. The defendant was in company with a fellow-native of Italy, Tony Scaltifalso, when Officer Murtha overtook and started to search them. He first searched Scaltifalso and then proceeded to search the defendant when a scuffle ensued, and he called upon two civilians to assist him. He and one of them held the. defendant’s hands and the other started to feel of the defendant’s clothing, when a pistol was discharged, the officer fell mortally wounded and the defendant and Scaltifalso, who meanwhile had been standing a few feet away, started to run. No one saw a pistol in the defendant’s hand at that time, and, as far as appears, neither the officer nor the civilian had discovered one on his person.

The trial court submitted the case under both subdivisions 1 and 2 of section 1044 of the Penal Law, and in respect to the latter subdivision, said: “So that if you ■should find that this defendant was under arrest or under lawful restraint by Officer Murtha, and that afterwards he was escaping from lawful custody, and that then and under those circumstances he fired the shot at O’Connell, which shot ultimately killed O’Connell, and that he did this without a design to effect the death of O’Connell, but under the conditions that I have given you, and the circumstances set before you, your verdict could be that of guilty of murder in the first degree.” The defendant specifically excepted to the submission under subdivision 2. As far as material, that subdivision provides: “The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed: * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise. ” The court charged, at the defendant’s request, “ That unless they find that this defendant committed this act after deliberation and premeditation, that they cannot find him guilty of murder in the first degree,” saying, ‘ I have already charged it; ” and later, “that any felony which had been perpetrated previous to the commission of the shooting of O’Connell, whether by this defend

In my opinion the evidence did not justify the submission of the case to the jury under said subdivision 2, and even if it did, the jury were not correctly instructed on the point.

Plainly the defendant was not engaged in the commission of, or attempt to commit, a crime upon Officer Murtha when O’Oonnell was shot. The prior crime was completed, and the assault upon O’Oonnell was merged in the greater crime. (People v. Hüter, 184 N. Y. 231 ; People v. Spohr, 206 N. Y. 516 .) Nor was the crime of carrying a dangerous weapon one, in the commission of which the defendant was engaged, within the meaning of the statute. Indeed, those crimes were eliminated by the charge of the court and -need not be further discussed.

The court intended to submit to the jury the question whether the defendant was engaged in the commission of the felony of escaping from the lawful custody of an officer upon a charge or arrest for a felony in violation of section 1694 of the Penal Law, which provides: “ A prisoner who, being confined in a prison, or being in lawful

It may be assumed that the defendant was guilty of the felony of carrying concealed weapons, indeed, not being a citizen, of the felony of having a dangerous weapon in his possession. (Penal Law, section 1897.) The People produced a witness who heard and saw all that was said and done immediately preceding the shooting of Officer Murtha. It plainly appeared from his testimony that the officer was engaged in searching Italians. Just before overtaking the defendant and Scaltifalso, he had stopped an Italian, searched him, and not finding anything had told him to go back. He had searched Scaltifalso and again not finding anything had told him “toget out of there.” He started to search the defendant when a scuffle ensued and he called upon the said witness “to break his [the defendant’s] hold.” The witness describes a scuffle, participated in by the three. The officer then called to his assistance a fourth man, who started to feel of defendant’s clothing while both his hands were held by the other two, and during the scuffle a pistol, which no one saw, was discharged in some unex

“ Arrest is the taking of a person into custody that he may be held to answer for a crime.”. (Code of Criminal Procedure, section 167.) The' defendant was not taken into custody by Officer Murtha “that he might be held to answer for a crime,” but only that he might be searched. In case of an arrest under a warrant “the defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant, if required.” (Code of Criminal Procedure, section 173.) The warrant must state the crime charged. (See Code of Criminal Procedure, sections 151 and 301.) In Howard v. Gosset (10 Q. B. [Ad. & El. N. S.] 359), a thoroughly considered case, Lord Coleridge stated the reason for the requirement that the warrant should disclose the cause of the arrest as follows: “ Several reasons are given; not the least important is, that the party called upon to submit to the process of the law may know what it is that is charged against him, and for what it is that he is called upon to yield himself a prisoner. If no cause, or an insufficient cause, appear, he takes his measures accordingly at the time; and he must judge from the information communicated at the time. Should

The officer would undoubtedly have been j ustified in arresting the defendant for the felony of carrying concealed weapons, or of having a dangerous weapon in his possession (Code of Criminal Procedure, section IW, subdivision 2), but in making the arrest without a warrant it was his duty to inform the defendant of his authority and the cause of the arrest, “except when the person arrested is in the actual commission of a crime, or is pursued immediately after an escape.” (Code of Criminal Procedure, section 180.) The reason of the requirement that a person arrested without a warrant be informed of the cause of the arrest is precisely the same as that for

The People assert that in the statements, which I shall consider later, the defendant admitted that he was under arrest. It is to say the least, doubtful, whether those statements referred to the alleged arrest by Officer Murtha or to the subsequent arrest after the shootmg of O’Connell. The pomt is unimportant because, although there was an arrest in the sense of a detention, the People’s evidence unmistakably shows that the defendant was not taken into custody that he might he held to answer for a felony or for any crime, and mdeed that the officer, himself, never reached the point of determining whether to arrest the defendant m that sense. To justify a conviction of murder in the first degree for an unintentional homicide on the ground that it was committed while the defendant was actually engaged in the commission of a felony, every essential element of the latter crime must be establishéd by evidence, not left to be guessed at.

Moreover, the charge of the court left it to the jury to convict the defendant of ■ the crime of murder in the first degree if they found that the defendant was under arrest or under lawful restramt by Officer Murtha, and that

A number of people appear to have pursued the defendant. Apparently only one could be found who was willing to testify that he saw the defendant fire the fatal shot at O’Connell. The testimony of that witness, while positive on the point, was not altogether satisfactory and a jury might have hesitated to accept it without corroboration. After he was . shot O’Connell was taken to a nearby saloon, and upon his arrest the defendant was taken.there in the custody of three police officers.

The day after the homicide the defendant was taken to the Butler Street station and there questioned by an assistant district attorney through an interpreter, from there he was taken to the bedside of O’Connell in the Holy Family Hospital and again examined, questions being put to O’Connell whose answers were interpreted to the defendant, from there the defendant was taken to the morgue and by the side of Murtha’s body was again subjected to an examination. Transcripts of the stenographer’s notes of those three examinations were produced and over the defendant’s objection were admitted in evidence. The alleged purpose of that evidence was to show admissions and contradictory statements to the

It will only be necessary tó quote sufficient of that statement to show its import:

By Mr. Mealli (the interpreter) to prisoner (the defendant).

“Q. This man [O’Connell] lying here now before you says that you are the man who shot him. What have you got to say about it ?

“A. I did not see him.

“ Q. He says that he saw you running toward him with a gun in your right hand, and that you shot at him and shot him and he fell down. What you got to say about that ?

“ A. No, I didn’t shoot him. I didn’t see him.”

It hardly seems necessary to discuss the proposition that evidence cannot be manufactured in that way. The statements quoted, and there was much more of like import, were not admissible to prove admissions, because the defendant made none. Instead, he unequivocally denied the accusation. The only effect of the evidence and the manifest purpose in offering it was to get O’Connell’s statements before the jury. Those statements were not dying declarations and it is not pretended that they were. They were not entitled to any • probative value, but being admitted by the court would naturally be given great weight by the jury. If there be anything in the entire statement either contradictory of the defendant’s testimony or in the nature of an admission, which we

The defendant had, previously to this trial, been tried for the homicide of Murtha and the jury had found him guilty of manslaughter in the first degree, but no judgment had been rendered on that verdict. I now quote from the record of the district attorney’s closing address to the jury:

“You are dealing with a case where there is not any question raised about the accidental discharge of a revolver and a struggle for its possession, there is nothing of that kind in this case. That has all been settled. The jury in the other case, that was properly tried first, because it lays the foundation for the trial of this case, has decided that he, this defendant, is the man who was criminally responsible for the slaughter of Officer Murtha that night, and having settled that, having laid the foundation for that, then you are in a position to go on and try the case against him where this other citizen was shot while he was walking along the street about his own private affairs, and that is the reason these cases were tried in this order, because if the jury in the other case thought that Tony Scaltifalso killed this police officer, that exonerates the defendant. That is not the case now.

'“ Defendant’s Counsel: I object to the District Attorney stating what the jury thought. They simply found this man guilty of manslaughter in the first degree. They

have not told anybody, what they thought about the-details of the cáse, and I object to this statement of what the jury thought.

“District Attorney: I presume it is not improper to say that if the jury had found that Tony Scáltifalso had fired the shot they would have had to acquit the defendant.

“ The Court: That would be proper.

“District Attorney: I presume so.

“Defendant’s Counsel: I take an exception to the District Attorney’s statement on that line, which I have indicated.”

- Of course, there should have been no reference whatever on this trial to a verdict of a jury in some other- trial not followed by a judgment. The mere verdict of a jury, which may be set aside and never result in judgment, is not even evidence, much less an adjudication. The first reference to the verdict of the other jury, which I find in the record, was by the district attorney in putting this question to the defendant on cross-examination:

“Q. You were convicted of killing Officer Murtha, weren’t you, on a previous trial in this court ? ”

An obj ection was overruled and the defendant answered: “ I don’t know whether they condemned me or found me guilty or not.” In rebuttal, evidently as impeaching evidence, the district attorney proved by the clerk the record of the jury’s verdict, whereas a judgment was necessary" to constitute such evidence (Blaufus v. People, 69 N. Y. 107 ; People v. Fabian, 192 N. Y. 443 ); and the court charged at the request of the district attorney that in weighing the defendant’s testimony they could consider the fact that he had been previously convicted, to which an exception was taken. The jury would. naturally understand from the summing up quoted that the finding of the other jury was conclusive, especially as the district attorney’s observations, when objected to, were characterized by the court as proper: In truth, they were

I have discussed the errors, which I consider of major importance. There were many others. To illustrate, I quote from the record the entire cross-examination of one of the defendant’s character witnesses:

“ Q. Did you ever hear that a man by the nameof Joe Masso, on the 6th of August , 1913, appeared before Justice of the Peace William Leister in Glen Cove, and swore (obviously the examiner was reading from a paper) ‘ that on August 6th, 1913, at about 6:30 P. M., I was on my way to a barber shop when I heard some sort of a muss down the street ’ —

“Defendant’s Counsel: I object to all that unless he finds out whether this witness knows anything at all about Masso. I believe it is prejudicial to read something in the record before this jury before finding out whether this man knows anything at all about the individual concerned.

“.District Attorney: I presume it is the proper province of cross-examination to cross-examine the witness regarding any complaint.

“Defendant’s Counsel: I submit it is absolutely wrong to read a document without first finding out whether this man knows anything at all about the individuals concerned.

“ The Court: I will allow it.

“Defendant’s Counsel: I take an exception.

“Q. ‘And one Guiseppe Marendi passed from that direction and pushed me, and I told him to be careful, as I was not bothering him. I went on and got a shave and when I came out the man I knew to be Guiseppe Marendi, who had pushed me, together with Grazio Pugliese, both attacked me and inflicted painful injuries.’ Did you ever hear that ?.

“A. No.

“Defendant’s Counsel: I object to the question.

“ The Court: He said he never heard it.

“ Defendant’s Counsel: That is all.”

The district attorney was plainly attempting by subterfuge to get before the jury an affidavit highly prejudicial to the defendant which he knew was not evidence. The attempt was grossly improper, and the court should not have allowed it to succeed.

In charging the jury on the corpus delicti, the court said: “ That is the direct proof, perhaps as clear and satisfactory as you could desire, and in fact I take it that there is no contention raised by the defense upon that point, so that the death of O’Connell may be almost eliminated as regards the proof. It is a fixed fact.” That error was technical, because the death of O’Connell was virtually conceded, and no request was made to submit the question to the jury. I allude to it here because of other instances which have come to our notice, in which trial judges, failing to distinguish between civil and criminal trials, have overlooked the rule that in a criminal case every fact essential to constitute the crime charged though not disputed must be submitted to the jury. (People v. Walker, 198 N. Y. 329 .)

The two errors just referred to are but typical of others, which standing alone or even collectively, might be regarded as technical and insufficient to require a reversal. We are required to give judgment “ without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” (Code Criminal Procedure, section 542.) The records in this court upon which judgments of conviction have been affirmed attest the liberality with which that section has been applied, and many which have come before ns of late suggest the possibility at least that that liberality is lead

What are technical errors not affecting the substantial rights of the parties? It would require some boldness to hazard an all-inclusive definition, and I shall confine myself to exclusion. The errors which I have referred to as of major importance can be said to be technical on only one possible theory, namely, that the jury properly decided the case. Are we then to disregard errors no matter how substantial, if upon a review of the evidence we are satisfied with the verdict of the jury ? Such a course will simply mean in the long run the abolishing of all forms of law taught by experience to be necessary to the protection of the innocent and the decision of criminal cases on appeal solely on the facts. If trial by jury is to be maintained, the right of every accused person to be tried in accordance with established forms of law must be respected. If the errors in question had related to matters upon which but one decision, and that adverse to the defendant, could reasonably have been reached, it might be permissible to overlook them; but where prejudicial matter is erroneously received in evidence on a disputed question of fact, its harmful character cannot be determined solely by the mere weight of competent evidence unless we are to resolve ourselves into a jury and, ignoring the finding upon incompetent evidence, substitute one upon the evidence which we may deem competent.

In this case highly prejudicial matter was received in evidence on a vital issue in utter disregard of a fundamental rule of evidence firmly established in our jurisprudence, and the jury were permitted to find the defendant guilty of murder in the first degree on a theory which

The judgment of conviction should be reversed and a new trial ordered.

I dissent and I will express my views briefly on the several objections to the judgment appealed from, mentioned in the prevailing opinion.

1. The first objection is that there was no evidence that the defendant had been arrested by Officer Murtha on the charge of committing a felony, and hence the defendant could not be convicted of murder in the first degree, on the ground that when he killed O’Connell he was attempting to escape from lawful custody after being arrested for a felony.

The court in its charge submitted to the jury the question of fact whether Officer Murtha had actually arrested the defendant, and defined what constitutes an arrest, and the power of police officers to arrest without warrant, in the language of the Code of Criminal Procedure.

The jury by its verdict answered the question in the affirmative, and there was, in my opinion, sufficient evidence to justify the verdict. The defendant testified on the trial that after Murtha had searched his pockets, he, the defendant, made two or three steps away and that Murtha said, “Hey, come here.” The defendant came back and Murtha took him by the arm and never loosened his hold until he was shot. The evidence also showed that on the day following the killing the defendant was examined by an assistant district attorney, and the following are some of the questions put to him, and the answers which he. gave:

“ Q. You say the policeman grabbed hold of you and then what happened ? A. After he searched all my pockets, then he grabbed me by the arms.

“Q. Then what happened? A. He wanted to bring me with him, and then I heard some shots.

“Q. You knew he was a policeman ? A. Of course I knew he was a policeman. He was in uniform.”

The jury could have found that the defendant, who is not a citizen of the United States, was actually carrying a concealed revolver and, therefore, guilty of a felony; that Murtha, who was a police officer in uniform, grabbed the defendant and searched him; and that thereafter when the defendant attempted to depart, the officer seized and detained him. Murtha is dead and we have not the benefit of his version of the affair, but from the fact that he called the defendant back and placed him under restraint when the latter stepped away, the jury would have been justified in finding that the officer had arrested the defendant for carrying the weapon.

The fact that the defendant was actually committing the felony at the time made it unnecessary under section 180 of the Code of Criminal Procedure for the officer to notify him of the cause of arrest.

2. The second ground of objection is that the charge to the jury omitted two essential elements necessary to make out a case of murder in the first degree, upon the theory adopted by the court, the omissions being the failure of the court to charge (a) that the arrest must have been upon a charge of felony; and (b) that the shot must have been fired at O’Connell by the defendant to effect his escape. The charge was in this language: “ So that if you should find that this defendant was under arrest or under lawful restraint by Officer Murtha, and that after-wards he was escaping from lawful custody, and that then and under those circumstances he fired the shot at O’Connell, which, shot ultimately killed O’Connell, and that he did this without a design to effect the death of

3. The third ground of objection is that certain testimony was improperly admitted, showing what was said at an examination of the defendant by the assistant district attorney on the day following the shooting, at the hospital where O’Connell, the wounded man, was lying in bed. In the course of the examination the defendant was questioned and answered as follows:

"Q. This man lying here now before you, says that you are the man who shot him. What have you got to say about it ? A. I did not see him.

“Q. He says that he saw you running toward him with a gun in your right hand and that you shot at him and shot him and he fell down. What you got to say about that? A. No, I didn’t shoot him—I didn’t see him. ”

These questions and answers were only a part of the examination, and it may be said in passing they were not specifically pointed out as objectionable — the objection made by defendant’s counsel being to the whole of the examination.

On the trial of the action the defendant testified that another Italian named Tony had shot Officer Murtha and that he and Tony ran away together and in their flight Tony passed the revolver to the defendant. The defendant says he was in a very nervous condition, and that in his excitement he fired the revolver in the air, and after going along for some time fired it a second time in the air.

Then, in rebuttal, witnesses were called to testify as to what was said at the hospital, and their testimony tended to contradict what the defendant swore to on the trial. On the trial the defendant said he had a revolver and fired it twice in the air; at the previous examination he declared repeatedly that he did not do any shooting and that he had no revolver. Saying also: “ How could I shoot him-—with my hands? I had nothing * * *. Why should I shoot them for ? What benefit would it be to me ? I did not know the persons. Why should I shoot them for ? ” And much more to the same effect.

It was under these circumstances that the testimony of which the defendant now complains got into the case. I think the testimony was proper to contradict what the defendant swore to upon the trial, and was not .rendered improper by the fact that incidentally it showed that the deceased, O’Connell, had identified the defendant as his assailant. ■

The examination was taken after the defendant had been warned of his rights and that what he said would be used against him. What was said was clearly and amply proved by the witnesses, so that, if proper at all, the evidence is not objectionable on any ground of informality in its reception.

4. The fourth ground of objection is to proof made by the assistant district attorney that the defendant had been tried about a month or two before the trial in this case on a charge of murder in the first degree for killing Officer Murtha, and had been convicted of manslaughter in the first degree. He had not, however, been sentenced at the time of the trial under review.

Of course it was not proper to receive any proof as to the other trial and conviction, but under the circumstances the defendant’s counsel was in a large degree responsible for it and no legal error is presented.

Objection is also made to the comment of the assistant district attorney, in his address to the jury, upon the former verdict. If the proof was in the case, it was not improper for him to make some comment thereon. What he said is quoted in the prevailing opinion and the only objection to his remarks was that he assumed to say “what the jury thought” on the former trial—the defendant’s counsel contending that the assistant district attorney could not know what the jury thought. This objection may be disregarded as trivial.

5. The fifth objection is to the admission in evidence of certain testimony to the effect that an information had been laid before a justice of the peace charging the defendant. with having assaulted another Italian. The witness of whom the questions were asked regarding the information had testified that the defendant’s reputation was good; that he had never heard anything against the defendant’s character, and did not know of the defendant being in any fight. On cross-examination this witness was asked whether he had heard of the information laid before

It is upon these several grounds of error which I have considered that a reversal of the judgment against the defendant is recommended. They are wholly insufficient to justify such a conclusion. I have no doubt of the defendant’s guilt, and I believe the record is free from serious error.

The judgment appealed from should be affirmed.

Willard Bartlett, Oh. J., Hiscooic and Cardozo, JJ., concur with Miller, J.; Cuddeback, J., reads dissenting opinion; Collin, J., votes for affirmance; Werner, J., not voting.

Judgment of conviction reversed and new trial ordered.