People v. Fiori

We all agree that the learned trial justice was right in over

The three principal characters who figure in this tragedy are Francesco Fiori, Charles G. Bahcock and Thomas J. Moulton. Fiori did the shooting; Babcock was killed, and Moulton was present at the shooting and is the principal witness for the prosecution. Fiori was seventeen years of age, an Italian by birth, a common laborer, and had been in this country about three years. Babcock was twenty years old, and Moulton eighteen. Babcock and Moulton were close and intimate friends, and as Moulton testifies, drank considerable together; went to places of public resort together and frequently got drunk together.

Upon the night in question, Fiori, Babcock and Moulton were in a saloon, and all three drank more or less. They left the saloon together, about midnight, and the shooting occurred about an hour later. Both Babcock and Moulton seem to have been without money, practically, when they left the saloon. Fiori had a five-dollar bill changed in the saloon, and there was found in his pocketbook after his arrest nearly ten dollars.

During all the time they were together, up to just previous to the shooting, there does not seem to have been the slightest disagreement among them; they treated each other, and seem apparently to have been upon the friendliest terms.

When they left the saloon they went down Arsenal street and through the public square, a little beyond Factory street, to the railroad shanty. Babcock went into the shanty for the purpose of lighting a cigarette, apparently; then they came back toward Factory street, where they separated, Moulton leaving the defendant and Babcock.

It is contended on behalf of the prosecution that the defend

Defendant testifies that after leaving the saloon Babcock took hold of his arm on one side and Moulton on the other; that they went down the street, on the way saying: “ You are my friend, you are my friend; ” that just before Moulton left them Moulton and Babcock stepped aside and talked; and that he could not hear what they said. Moulton, upon cross-examination, admitted that he and Babcock may have stepped off three or four steps, but stated that he was unable to recollect whether they had any conversation. The defendant further testified that he said it was late and he wanted to go home, and Babcock told him to come on.

Moulton testified that the defendant said that he (Moulton) had better go home, but would not swear that he did not say that he was going home; that he talked brokenly, and it was hard to understand him. Moulton testified further that when he left" Babcock he said, “ Good night,” and started home, going up Factory street, but admits that he did not go home. He says that the defendant and Babcock went back through the public square, down Court street, and stopped in front of the Seymour House at the corner of Court and Massey streets, going a distance of about a half a mile; that he followed them and was about forty feet behind them all the way to where they stopped, when he went by, apparently unobserved by them; that he intended to get by without being seen. A policeman testified that he saw the

It is not contended that the defendant knew that Moulton Avas following, or ahead of or near them, and Moulton disclaims that there Avas any understanding between him and Babcock that he should folloAV, or any signaling between them when he was ahead' and the defendant and Babcock were behind. He insists that neither the defendant nor Babcock knew that he was near them until they reached the vicinity of the place where the homicide occurred, and to AAdiich attention Avill now be called.

After the two passed the tree where Moulton was hiding, he followed along behind them, on Main street, to Moulton street, a distance of about 500 or 600 feet. He heard Babcock saving to the defendant, you are a friend of mine.” There Avas no' quarrel or contention; no unpleasantness. He saAV them go doAvn Moulton street, a distance of about 100 feet, or a little more, to a bend by the telegraph pole, where they stopped. He says that Avhen they turned doAvn Moulton street they Avere about 30 feet ahead of him; that he continued to walk up to them until he arrived about 3 feet from them; that there was no quarrel or loud talk until they stopped; that he then heard Babcock say to the defendant, “ You have been following me for my money; ” that he walked up to them and said, “ Here, here, what’s this ? What’s the matter with you fellows ? ” and that when he said that the defendant ran out into the middle of the road and up the street, and stopped; that at that time he (Moulton) was standing down by the side of the telegraph pole; that Babcock stepped off the walk; that just as the defendant stopped, Babcock started,

What occurred, according to the defendant’s testimony, may be best stated in his own words. He testified: “ As soon as we got in the dark spot, I met Moulton over there, and I got scared when I saw him. I was scared and said, ‘ Why this one is here ?

Moulton testified that he heard but one shot fired, but all the other witnesses who heard the shooting say that there were two fired in quick succession, and there is no doubt that two shots were fired, since there were two gun-shot wounds, one just back of and below the left armpit, and another in the back of the head, about midway between the tip of the mastoid process and the point of bone which forms a prominence at the back of the skull, or, as one witness puts it, right at the left ear, below or about the base of the brain. The. bullet making the first wound passed

Mrs. Oakes, who had rooms upstairs in the block in front of which the shooting occurred, says she noticed two' men come down the street, and that she .saw one man turn and go up toward Main street and then come back; that she did not know what the other did; that she heard two shots; did not see who did the shooting, and that she got back from the window just as he started to, run. .She was unable to describe the man whom she saw running. She was asked the question whether the man whom she saw running at last across the street and down Main street was the same man whom she had seen go up Main street, and she replied that she could not tell. Being further questioned upon the same subject, she said she could not tell for certain; that it looked like the same one, and upon being further pressed, and asked to give her impression, she said that she thought it was the same one. She further stated that she did not see any other person come down the walk after the two, and that she did not hear any such exclamations as Moulton testified he made, that she was rocking her child.

Other witnesses who lived in the neighborhood and heard the shooting, called by the prosecution, stated that they heard no halloing or calling the name £ Charlie.” One of them, a Mr. Welch, who resides on the corner of Moulton and Main streets, testified that what first attracted his attention was hearing the words, “ Throw it, throw it; ” that he judged it was an English voice. He heard no one call names, or shout. Mr. Leffingwell who also lives on the corner of Main and Moulton streets, in the same block, testified that he was awakened by hearing some talking; that he heard some one say, “ Leave me alone,” or “ Go home; ” that that was all the words he could catch; that it was not plain English; that all he heard of the conversation that he

Without further detailing the testimony as to what transpired at the time of the shooting, and prior thereto, it may be stated, generally, that the proof fairly shows that the defendant was not the aggressor in the first instance, and it may well be that the defendant was attacked by Moulton and Babcock, and that they attempted to rob him, as he claims, nor is it at all certain that the jury would have found the defendant guilty of the crime of which he was convicted except for the evidence to which attention will now be called.

Miles Sedore, a resident of Canada and a friend of Babcock, came voluntarily into this State at the request of the district attorney, attended the trial and testified that he was at Water-town for four or five days in July, 1905; that on the fourth of July, which was about two months before the shooting, he saw the defendant with Emily Olney, whom the witness characterized as Charlie Babcock’s girl; that Babcock followed and stepped up between them, and threw the defendant to the ground and choked him; that he (the Avitness) pulled Babcock off, defendant ran away, and Babcock folloAved Avith the girl; that he and Babcock Avent to Syracuse that night, and finally arrived at Eapanee, Canada, where he (Sedore) resided, the seventeenth or eighteenth of August.

This occurred about midnight, and witness admitted that he

The circumstances to which the witness testified .as having occurred on the night of the fourth of July were important, if true, not only upon the question of motive and the degree of crime, if any was committed by the defendant, but also upon the question as to whether the shooting was criminal at all. This witness was the last witness called for the People on its case. He was not sworn before the grand jury, and the defendant’s counsel claims that he was taken wholly by surprise and unable to adequately meet this testimony upon the trial.

The defendant himself testified that no such occurrence as was sworn to by Sedore ever occurred; that he never was in the city of Watertown before August, 1905; that he never saw Babcock before the night of the shooting, and never knew Moulton before that time; that he never walked with this girl, Emily Olney, or ever knew her; that he was working in Philadelphia, H. Y., on July fourth, and called witnesses whose testimony tended to corroborate him.

It seems that the girl, Emily Olney, was at that time confined in the Hew York State Training School for G-irls at Hudson, so her testimony was not available upon the day of the trial. Subsequently her evidence was taken and used on the motion for the new trial; and she testified that she knew Babcock, but the last time she saw him was on the afternoon of July 4, 1905; that she never knew the defendant, and never was out walking with him, and that no such occurrence as Sedore testified to ever happened.

A motion for a new trial was made, based upon her testimony, and also upon the further ground of other newly-discovered evidence, tending to show that Babcock and Moulton made a

The motion was opposed by the district attorney, the affidavits read in opposition thereto being largely directed to the question of the credibility of the witnesses by whom it was proposed to contradict the evidence of Sedore and establish the statements referred to, made' by Moulton and Babcock. The motion was denied upon the ground that the evidence was cumulative and probably would not change the verdict, the court saying as regards Emily Olnev, who seems to have been a lewd woman, that her character was such that little weight should he given to anything she might say.

Counsel for the defendant contends that the motion should have been granted, and also urges as grounds for reversal exceptions to the charge, and, to the rulings upon questions of evidence, and remarks of the trial court during the trial, which he contends were highly prejudicial to the defendant. Some of them are without merit, and we need not discuss them. There are others which require some attention.

The witness Moulton was asked whether he frequently went down on River street. The question was objected to, and the objection was sustained, t'o which the defendant excepted. "Witness was then asked this question: “ You have visited very frequently houses of ill-repute? [.Same objection] The Court: I think you ought to he able to understand my ruling. If you cannot understand it, I will have to state it in such a manner that you won’t forget it. Mr. Wilcox: I do understand it, but I thought you threw out the question because it was not proved, before the court that River street was a street having on it houses of ill-repute. I think I have a right to show that he frequently

While we do not hold that this ruling alone requires the granting of a new trial, we think the trial court might well have permitted the answer to be given. The fact that Emily Olney was a dissolute character seems to have had weight in determining her credibility, and if Moulton had answered the question in the affirmative, it was a proper circumstance to be considered, with others, in connection with the credibility to be given to his testimony.

Judge Peckham, in the La Beau case, while agreeing that it was not an abuse of discretion in that case to reject the evidence, says, as a general rule, evidence on cross-examination tending to impeach the credibility of a witness should be rejected with very great caution; its exclusion can rarely be proper. Of course, cross-examination may be carried along this line beyond reasonable limits, but as the question was here presented, and under the circumstances of this case, we think the question was not subject to this criticism.

Counsel for the defendant also claims that remarks prejudicial to defendant were made by the trial court, calling attention to what the trial court said when ruling upon the question last referred to, and other remarks made during the course of the trial, among others the following, which occurred upon the cross-examination of the witness Sedore, upon the subject of his

If there was sufficient cause to justify the remark excepted to, it is not disclosed by the record, and it may have been prejudicial to the defendant. (12 Cyc. 538.)

It is also contended on defendant’s behalf that evidence of his confession was improperly received, over the defendant’s objection and exception. The evidence of what the defendant said was given by a policeman, the statements being made in the presence of himself and other policemen, after the defendant was under arrest and in the custody of the police officers. That fact appearing, the defendant’s counsel objected, and asked to examine the witness preliminarily, which was refused, the court saying: “ You can cross-examine later on, and if it turns out that the statement was elicited under such circumstances as would make it incompetent, you can strike it out,” to which ruling defendant’s counsel excepted. We think counsel was entitled to the preliminary examination. (People v. Fox, 121 N.

Certain experimental evidence was admitted against objection and exception of the defendant. One of the police officers cut pieces of cloth1 from a new garment, and penetrated the same with bullets fired from a revolver. He took a brushbroom and moistened it through, as he says, to the extent to which he judged Babcock’s coat was wet. The tests were made at distances varying from one to forty-eight inches, and the part of the fabric immediately surrounding the hole was cut from the garment, and afterwards subjected to microscopical and chemical examination by an expert, and was found to contain powder. The expert admitted that the kind and condition of the powder would make a difference in the combustion, and the condition of the atmosphere would make a great difference.

It is undoubtedly true that evidence of this character is admissible, and very commonly resorted to, but the circumstances and conditions must be similar. The ruling is thus stated in the American and English Encyclopaedia of law. (12 Am. & Eng. Ency. of Law [2d. ed.], 406) : “ Where a party seeks to show by evidence of experiments that an alleged result would or would not follow from the conditions proven, the experiments, evidence of which is sought to be introduced, must have been made under circumstances and conditions similar to those constituting, as it were, the premises from which the original event is alleged to have been the conclusion. Thus, where a material question was the distance between the muzzle of the gun and the body of the victim of an alleged murderous design, evidence was excluded of the result of experiments as to powder marks made upon pasteboard targets by firing a gun at varying distances, upon the ground that the human body is fundamentally different in nature and texture from the substance upon which the experiments were made.”

It is true that the conditions were sought to be met with refer

The learned trial judge referred to these experiments made by the officer, permitting the jury to infer from the evidence that the fatal shot which penetrated the head was fired when the muzzle of the revolver was more than forty-eight inches from the head. We think that if the evidence of the tests made by the police officer, and the result thereof, had been limited to the first wound (that which pierced the garment and body below the armpit), it would not have been harmful. The defendant himself claimed that Babcock was near him when the first shot was fired, and perhaps the conditions were sufficiently similar to admit the experimental evidence to that extent. But it went beyond that, and made a comparison with the tissues of the head where the bullet penetrated. We think it injected into the case an element of dissimilarity, which, instead of aiding the jury, would be quite liable to confuse them, as was said in the case of State v. Justus (11 Oreg. 178), where the court refused to receive experiments made by shooting at pasteboard targets, the court saying: “ Where such evidence has been held as admissible, the experiments were made with like means on the same kind of stuff or substance, or were based on a similarity of conditions or circumstances whereby the results produced betray, with some certainty and uniformity, a common similitude or agreement, and as a consequence thereof furnish a safe foundation for inference or the truth of the matter sought to be established.” We think the evidence, as applied, was not within the rule requiring

There were also several exceptions to the charge. The coroner, who was present at the post mortem, testified that there was no evidence of powder marks upon the skin, or of the ear being burned around the wound on the head. It seems that the two physicians who performed the autopsy, and were sworn before the grand jury, were present in court, but not put upon the stand by the district attorney. The trial judge was requested to charge that that fact should be taken into consideration by the jury in determining whether or not they would have testified to the contrary. The request was declined and excepted to.

The nearness of the deceased to the defendant at the time the second shot was fired was in dispute, at least so it is claimed by the district attorney. The defendant insisted that the second shot was fired at the time of the struggle, and Moulton does not testify to the contrary. So far as that fact was put in dispute at all, it was by the lack of powder marks and other circumstances from which the district attorney seeks to have the inference drawn that the struggle had ended, and that Babcock was some distance away when the fatal shot was fired.

We think that, under the circumstances, the defendant was entitled to this charge. (Sugarman v. Brengel, 68 App. Div. 377 ; Kirkpatrick v. Allemannia Fire Ins. Co., 102 id. 327; affd., 184 N. Y. 546 ; People v. Smith, 113 App. Div. 396 .) Of course, either party could have called them, and very likely no presumption would arise, as a matter of law, from the failure upon the part of the district attorney to do so, that their testimony would be contrary to that of the coroner. But it was a circumstance which the defendant’s counsel, I think, had the right to comment upon, and if so it was a proper circumstance for the jury to consider. The jury might well have found that their testimony would be less favorable to the People.

The trial judg’e read to the jury section 205 of the Penal

Under the 1st subdivision of that section the defendant had the right to kill Babcock in the lawful defense of himself, if there was reasonable ground to apprehend a design upon Babcock’s part to commit a felony or to do him some great personal injury, and there was imminent danger of such design being accomplished. Under the 2d subdivision such a homicide was also justifiable, in the actual resistance of an attempt to commit a felony upon the defendant. The entire subdivision reads: “ 2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is.”

The undisputed evidence shows that the defendant was attacked in the first instance. The defendant also testified that both Babcock and Moulton, after demanding his money, and ho had asked to be let alone and to go home, grabbed him; threw him to the ground; that Babcock had his knee on his abdomen, demanding his money; and that he was unable to breathe, and he then shot.

Counsel for the defendant requested the court to charge that if

Blackstone, in his Commentaries (4 Bl. Com. 180), after stating that homicide committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature, and also by the law of England, says that if any person attempts the robbery or murder of another and should he killed in such attempt, the slayer should be acquitted and discharged; and then points out the distinction between such a homicide and homicide in self-defense, or se defendiendo, upon a sudden affray, saying that the' latter is also excusable rather than justifiable by the English law, and that such a species of self-defense must be distinguished from that calculated to hinder the perpetration óf a capital crime, which is not only a matter of excuse, but of justification; that to-excuse homicide by a plea of self-defense in such a case it must appear that the slayer had no other possible, or at least probable, means of escaping from his assailant.

This same distinction is made by Bishop in his work on Criminal Law (Bish. Crim. Law [8th ed.], §§ 840, 841, 849, 867). And so it was early provided by statute and incorporated in the ¡Revised Statutes of this State that homicide should be justifiable-when committed by a person when resisting an attempt to murder

We think this same distinction is carried into the provisions of the Penal Code, as is manifest from a reading of subdivisions 1 and 2 of section 205. We need not now point out to what extent the rules of the common law have been changed by statute, nor do we say that the statements read from the opinions in the Court of Appeals may not apply to this case.

If the defendant was thrown to the ground, and Babcock and Moulton were actually robbing him, as he claims, he had the right to resist being robbed, and to use whatever means lay within his power, necessary to that end; and if the facts were as the defendant claimed them to be, and embodied in these various requests, and the jury so found them, they established not only that the defendant was in great peril, as that term is used by the Court of Appeals, but that the homicide was justifiable in law, as declared and applied in the decisions of the Court of Appeals; and the jury should not have been left to speculate upon the question as to whether the defendant had reasonable grounds for believing that he was in great peril, if they found these facts. The jury might well get the impression that the defendant, having but ten dollars upon his person, was not in great peril, and that the killing was not necessary; that lie should rather have! submitted to being robbed than take the life of the person robbing him.

Judge Allest, in Ruloff v. People ( 45 N. Y. 213 , 220), commenting upon the provision contained in the Ecvised Statutes making a person who unnecessarily kills another, under such circumstances, guilty of manslaughter, says: “ Without undertaking to define the boundary line which separates the lawful

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

All concurred, except McLennan, P. J., and Spring, J., who ■dissented upon the ground that the evidence fairly established the guilt of the defendant and that there were no prejudicial errors committed.

Judgment and orders reversed and new trial ordered.

ÜTOTE.

As to admissibility of declarations of accomplice, see the very able notes in 5 N. Y. Crim. 216 ; 9 Id. 105; 11 Id. 300, 520, also People v. Martin, 123 App. Div. 715 ; People v. Quinn, 123 App. Div. 682 ; People v. Fiori, 123 App. Div. 174, ante, and People v. Acritelli, 22 N. Y. Crim., post.