People v. Parretti

On the evening of March 16, 1917, the body of one Generosi Nazzaro was. found on the trolley car track about two hundred feet north of Montague street, •in the neighborhood of Nepperhan avenue, city of Yonkers.' An autopsy disclosed two several" gunshot wounds on the right side of the body, that one bullet had passed through both' lungs, the second bullet had passed through the liver, and ' death resulted from severe hemorrhages.

About thirty-five feet northerly of the point where the body' was found, a derby hat, a pool of blood and a Smith and Wesson five-chambered revolver were discovered. The chambers of the revolver contained three empty shells and one loaded shell. Some thirty feet easterly, a second revolver, known as a “ police positive ” was found." An examination of that revolver disclosed two chambers fully loaded; the remaining chambers contained exploded shells.

The defendant together with his brother, Antonio Parretti, Frank FeVrola and Alfonso Sgroia were jointly' indicted for the- crime of murder in the first degree in ■ that they • caused by criminal means the death of Nazzaro. The defendant was separately tried.' The claim of the prosecution upon the trial was that the shooting of Nazzaro and his death following the same, as a result thereof was due to a combination or conspiracy between the parties named in the indictment to effect the, death of Nazzaro.

As tending to show a conspiracy between the defendants named in the indictment to kill Nazzaro, one of said defendants, Sgroia, was called as a witness by the People. His evidence briefly summarized was in effect that the four named defendants, together with the deceased and one Danielo, subsequently called as a witness for the

Danielo, called as a witness by the People, testified that some days before' the homicide Antonio Parretti. stated in his presence and the presence of others that he had discovered’ the man who double crossed the Navy street gang and wanted to kill a good friend of his; the man was Nazzaro; that Antonio said' that he had prepared the trick to do the job to him.

As to the commission of the crime, Sgroia testified in substaneé that he and defendant were at the house of Fevrola in Yonkers the afternoon of the day of the homicide, at which time Fevrola outlined to them the manner in which Nazzaro was to be killed and which was later carried out in substantially the following manner: In the evening Sgroia, defendant, Fevrola and Nazzaro walked out some distance in . the vicinity of the route of the trolley road to a point where no houses were in view.- At a given signal Fevrola and defendant, who together were walking ahead of the other two, stopped and Sgroia and Nazzaro then led the way. By that time darkness-had set in. A second signal was later given and Sgroia stepped aside and Fevrola fired a shot.at Nazzaro,

One Danielo testified that on the following day defendant gave him a brief account of the killing of Nazzaro, stating, “ We took him over to the farm there and we done the job.”

This brief résumé of the evidence tended to establish a conspiracy on the part of the defendants named in the indictment to effect the death of Nazarro and a consummation of such conspiracy.

The defendant as witness upon the trial denied that he was a memder of the Navy street gang, that he was a party to the conspiracy to kill Nazzaro, had knowledge of the same or in any manner participated in causing the death of Nazzaro or had theretofore been charged with the commission of crime.

The witnesses Sgroia and Danielo are inmates of state’s prison. Sgroia is serving a sentence after a plea of guilty of manslaughter first degree under an indictment for the crime of murder first degree. He had also been tried and convicted of assault in the first degree and testified that he had committed four murders. Danielo is serving a sentence under plea of guilty of assault second degree, had also been confined under like plea of manslaughter and admitted that he had aided in the commission of several murders.

The trial justice held as matter of law that Sgroia and Danielo were accomplices and read to the jury as a part óf his charge the provision of the Penal Law defining a “ principal ” and section 399 of the Code of Criminal Procedure which provides: “ A conviction cannot be had upon the testimony of an accomplice, unless he be cor

For the purpose of meeting that requirement of law the district attorney was presumably compelled to call as a witness for the prosecution one Chiafalo, an inmate of the state’s prison who is serving a term of twenty-five years, having been convicted upon a trial of an attempt to murder, and had also served previous terms of imprisonment for minor offenses.

The trial justice held that Sgroia and Danielo were accomplices and submitted to the jury the credibility of the testimony given by Chiafalo and whether or not his evidence was sufficient to satisfy them that the, same tended to connect defendant with commission of the crime for which he stood indicted.

The importance of the testimony of this witness necessitates a. somewhat extended review of the same, especially in view of the fact that the fundamental question involved in this case is dependent thereon. In a review of such evi-

dence we apply the law laid down by us as to the function of this court in homicide cases where a verdict of murder in the first degree has been rendered by a jury as definitely pointed out by the present chief judge of this court, then Judge His cock, in the opinion written by him in the case of People v. Becker ( 210 N. Y. 274 , 288, 289), which may profitably be quoted here: “ The law does cast upon us in such a case as this the burden and responsibility of deciding before permitting execution whether a verdict is supported by the weight of evidence. That, of course, does not mean that we are to take the place of the jury in passing upon those ordinary questions of the reliability of witnesses and of the credibility of testimony which constantly arise in trials or that we are to overturn the verdict simply because as an original proposition we might have reached a different result. It does mean, however, that we must say if that question should be reached whether, taking into account the

The jury having accredited the evidence of the witness Chiafalo, we are required to scrutinize such evidence and determine whether the same. “ was so unclouded by the shadow of any reasonable doubt that the state would be justified in taking defendant’s life.”

Chiafalo testified to an acquaintance with the persons named in the indictment and with the deceased Nazzaro who was also known as-“ Joe Chuck.” He testified that one night, the date he could not remember, he was in a restaurant located across the street from Booth’s Theatre on West Forty-fifth street,. New York, and rémembéred that Sgroia and defendant came into the restaurant, and then followed: “ Q. Did you notice anything about their clothing? A. Yes, sir, dirty shoes. Q. What conversation did. you hear either Sgroia .or defendant or both of them have? , A. There .were several people there, I remember .them saying everything .was all right, ‘somebody says, ‘ He is off.’ ” Asked to tell'-all he heard, he replied: “ I heard somebody say, I don’t know-who said it, there were, several people there, I don’t know who say.it, I no pay much attention to' it, ‘ he-is off-, left him in the trolley track, we lose ourselves in the woods and we come back again and he is still lying there

In the charge to the jury the trial justice, speaking of Chiaf alo, said: “ The gentleman is not an accomplice. He has testified that on the night in question he was present and saw the defendant and. the Butcher (Sgroia) come into the place in Forty-fifth street, New York; sit down, talk together and some one, he is not certain who • — • said, ‘ he is off, we left him on the track.’ Gentlemen, if you are satisfied that this murder was committed by arrangement, by agreement, that there was a conspiracy to effect the murder of Joe Chuck (Nazzaro) it is immaterial which of those who came in with dirty boots said those words. Does that testimony given by Charley Young (Chiafalo) tend to corroborate? Is it truthful? Does it convince you beyond a reasonable doubt that the defendant was implicated in the commission of the murder? Does it tend to corroborate? That is a very important question in this case and that you must conscientiously consider and decide.”

Counsel for defendant noted an exception to that part of the charge in which reference was made to Young’s (Chiafalo’s) testimony, “ and to that part of your Honor’s charge in which you said that if there was a cpnspiracy, it- is immaterial which one of these that came into that restaurant after the homicide at night said, what was there said about somebodys being off and being left on the tracks.”

“ The Court: I want no misunderstanding about that. If I said that, I referred to those men who came in there with dirty boots, that is all.”

The evidence of the witness Chiafalo is vague. The record does not disclose the dimensions of the restaurant, whether large or small, wherein he heard the conversation related by him, the proximity of the other people present therein to the witness, Sgroia or defendant. Whether or not the conversations testified to by Chiafalo were had in his immediate presence or participated in by the group of “ several people ” does not clearly appear. When inquired of as to conversation between Sgroia and defendant, the witness replied “ There were several people there, I remember them saying everything was all right. I heard somebody say, I don’t know who said it, there were several people there, I don’t know who say it, I no pay much attention to it. He, Chuck (Nazzaro), is off, left him in the trolley track, we lose ourselves in the woods and we come back and he is still lying there dead. I don’t know who said it.” When the witness used the words “ them saying ” in response to the question as to a conversation he heard between Sgroia and defendant, did he by the use of the word “ them ” refer to Sgroia and defendant or, having preceded such words with “ there were several people there ” by the use of “ them ” did he refer to one or more of the several people or to “ somebody ” whom he could not say, especially when

The trial of the defendant was conducted with commendable fairness by the presiding justice, the district attorney and counsel for defendant. In the charge of the justice to the jury bearing upon the evidence of Chiafalo, hereinbefore quoted and to which exception was duly taken by counsel for defendant, is embodied an expression apparently in conflict with the views we entertain pertaining to the weight of evidence of Chiafalo. Calling attention of the jurors to the testimony of Chiafalo that he was present in the restaurant and saw defendant and Sgroia enter the same, sit down, talk together, and some one he is not certain who said, “ He is off, we left him on the track,” the justice charged the jury in substance that if the jury found that there was a conspiracy to effect the death of Nazzaro it is immaterial which one of those who came in with dirty boots said those words. Exception having been taken to that part of the charge, the justice made clear his intention to confine his remarks to the men who came in there with dirty shoes.

If such implication was deducible from the charge can it be said with any reasonable degree of certainty that the jurors may not have attributed to Sgroia or defendant the various conversations overheard by Chiafalo as related by him, the author of which he was absolutely unable to identify from amongst the several people in the restaurant at that time?

The defendant, who has never before been charged with a violation of the criminal law, has been sentenced to a forfeiture of his life after conviction upon the testimony of undesirable men. Concluding as we do that the evidence of corroboration of the accomplices was too indefinite and unsatisfactory to justify the verdict of the jury, and that the ends of justice will be promoted by ordering a new trial whereon the evidence may be made more clear and definite, the judgment of .conviction should be reversed and a new trial ordered.

Hiscock, Ch. J., McLaughlin and Andrews, JJ., concur; Cardozo, J., concurs in result; Pound and Crane, JJ., dissent.

Judgment of conviction reversed, etc.