People v. Buzzi

On the evening of February 26, 1923, between five-fifteen and five-thirty o’clock, the body of Frederick Schneider was found in an automobile on Soundview avenue in the county of Bronx. He had been shot twice through the head and there was a revolver on the seat beside the body. The wounds could not have been self-inflicted, and the evidence shows almost conclusively that he was killed by a woman or at least some person

At the trial, William Turk testified that he was a taxicab driver and was married to defendant’s sister. According to his testimony, the defendant asked him to procure a revolver for her, some time in January, 1923. The defendant repeated this request a week or ten days later and on February 21st repreached him for his failure to obtain a revolver. On Washington’s birthday, the following day, he borrowed the revolver from its owner, stating he wanted to take it to his brother’s cigar store for protection. On February 24th he told the defendant he had the revolver and would bring it to her the next day. At two o’clock in the morning of Sunday, February 25th, the defendant telephoned to him: “ I want to see you right away and do not forget to bring that thing with you.” She then told him she would meet him near her home at One Hundred and Sixty-seventh street and Grand Concourse. This testimony of Turk was to some extent corroborated by the testimony of Eichard Smith, a friend both of Boynton, the owner of the revolver, and of Turk, who borrowed it from Boynton. Smith boarded with Turk and his wife, and he testified that between two and three o’clock that morning the telephone rang in Turk’s apartment. He answered

The defendant contradicted Turk’s story completely and in every detail. She not only denied that she had killed Schneider, but denied all motive for such killing. She denied that she had telephoned to Turk on the morning of February 25th or had met him or had ever asked for, received or even seen the borrowed revolver. She attempted to show that she could not have been present at the place and time of the killing and upon this point she has the corroborating testimony of a number of disinterested and unimpeached witnesses. The trial was protracted. There was other testimony against the defendant in addition to that of Turk, and there was evidence of weight in her favor. It would serve no purpose to analyze the testimony in detail, except in so far as such analysis is necessary for the proper consideration of the questions of law raised by the defendant. Examination of the record has convinced us that the evidence produced by the prosecution is sufficient, if believed, to sustain the verdict of murder in the first degree against this defendant, and that after weighing the evidence the jury might reasonably accept the testimony of Turk and reject the defendant’s denials; yet the preponder

The appellant has presented on this appeal specifications •of many alleged errors. Somewhat novel questions were raised at the trial by objections to the admission of evidence, and in some instances the answer to these questions is not free from doubt, but we have decided that, except in the instances which we shall discuss hereafter, the rulings of the trial justice either were correct or, if erroneous, could not have affected the result of the trial. The claim of error which we regard as most serious concerns the admission of evidence intended to show that a detective employed by the defendant’s counsel and the defendant’s sister, Mrs. Turk, attempted to secure the suppression of testimony which might prove harmful to the defendant. Mrs. Turk is the wife of William Turk, whose testimony for the prosecution has been briefly summarized above. Upon her direct examination she, as well as •other witnesses, attempted to create at least a suspicion that William Turk and not her sister had killed Schneider. Upon her cross-examination the prosecution, over the defendant’s objection, was permitted to bring out the fact that she had accompanied Honahan, the detective, to Philadelphia in order to introduce him to Boyton, the owner of the revolver. According to her testimony Boyton said at that interview that he was sorry he could not talk and nothing was said by Honahan “ about having Smith lay off of his testimony.” She stated that Boyton promised to see Honahan at Newark where he would have more time to talk, and subsequently she accompanied Honahan to Newark, but that Honahan did not see Boyton. The defendant on her cross-examination testified that she was not told by Honahan that he was going to Philadelphia or Newark and was not told anything about such visits

The prosecution seeks to sustain the admission of this testimony upon the ground that it shows an effort to suppress evidence against the defendant and to coerce witnesses. In the case of People v. Shilitano ( 218 N. Y. 161 , 179) the court stated: “ That such efforts may have some tendency to prove a consciousness of guilt seems to be a fair deduction, and, therefore, they were properly received in evidence. (Nowack v. Met. St. Ry. Co., 166 N. Y. 433 , 443; Lacs v. Everard’s Breweries, 170 N. Y. 444 ; Hoag v. Wright, 174 N. Y. 36 , 46.) ” The testimony of Bichard Smith, which we have previously outlined, to the effect that between two and three o’clock in the morning on February 23d he heard the telephone ring, recognized the voice of the defendant and at her request called Turk to the telephone, is of evident importance to the prosecution. It constitutes the sole direct corroboration of the story told by Turk to cast upon the defendant the responsibility for the presence in the automobile of a revolver which Turk had previously borrowed. Doubtless efforts on the part of the defendant to suppress such testimony would reasonably lead to the deduction that she feared it and would

In Nowack v. Metropolitan St. Ry. Co. ( 166 N. Y. 433 , 448) this court held that in an action for negligence against a corporate defendant, evidence of efforts to suppress testimony by an agent employed to look up and “ see to ” witnesses was admissible. The court overruled the contention of the defendant “ that such evidence is not admissible against a corporation without proof of some corporate act expressly authorizing an agent to tamper with witnesses,” but the rule of that case may not be extended to cover evidence offered in a criminal case against an individual defendant and intended to show that an agent acting only under general agency to investigate and prepare a case or even to see witnesses had attempted to suppress unfavorable evidence. The basis of the decision in that case was that a corporation has no individual consciousness of guilt. It can feel and act only through its agents and the act of an agent of a corporation performed within the general scope of his authority is a corporate act even though no specific authority to perform the particular act had been given to the agent; and inferences against a corporate principal may, therefore, be legitimately based upon the corporate acts preformed by such an agent. The basis of the ruling by the court below in the present case is that, the act of the alleged agent shows consciousness of guilt on the part of the individual defendant; but consciouness of guilt can obviously not be inferred from acts of others which the accused is not

We have concluded that the testimony in regard to the conversation at Newark between Honahan and Boyton at which Mrs. Turk was not present was inadmissible, but on other grounds the testimony as to the conversation at Philadelphia was competent. The evidence is simply sufficient to allow an inference that this conversation was held in pursuance of a conspiracy between Mrs. Turk and the detective to “ pass the buck to Billy Turk,” her husband. She had previously in her testimony tried to throw suspicion upon her husband..

We recognize that in a protracted case of this kind with many novel questions presented in regard to the admissibility of evidence, it is almost impossible for the trial judge to make all his rulings conform to the views of the appellate court. This case was tried with care and ability by the trial judge, and as we have pointed out, there is evdence which is sufficient, if believed, to sustain the verdict. Hot lightly should the court under such circumstances set aside the verdict for trivial error, but it must do so if the record tends to show that the verdict of the jury is based not on careful consideration of competent evidence, but on prejudice or passion or incompetent evidence. The testimony of the conversation at Philadelphia might reasonably tend to cast doubt upon the credibility of Mrs. Turk’s story; the incompetent testimony of the conversation at Hewark upon the theory on which it was admitted might well tend in addition to cast suspicion upon the entire defense, and to give weight to the testimony of Bichard Smith as to the alleged telephone conversation on February 23d by showing that the defense feared it. The question of whether such testimony was so prejudicial as to require a reversal depends upon the atmosphere of the whole trial. If nowhere in the record we found other ground for

The prosecution repeatedly asked the defendant and her two sisters, who were witnesses, whether another sister, who was not produced as a witness, did not live in illicit relations with a man named Peck. All the witnesses denied knowledge of such relations, yet the constant repetition of such questions may well have introduced into the minds of the jurors a doubt as to whether they were not based upon actual fact and a suspicion and prejudice which the defendant could not counteract. (People v. Freeman, 203 N. Y. 267 .) The prosecution claims that the purpose of this testimony was to lay the foundation for proof that the deceased had loaned money to Peck and that under the circumstances such proof would bear “ upon the motive for the killing.” We cannot see how such proof would in the slightest degree bear upon the motive for killing Schneider. On the contrary, the questions actually propounded might reasonably tend to prejudice the jurors against the defendant by suggesting that not only did the defendant live in meretricious relations with the deceased, but that she came of a morally depraved family; and if the proof had been completed it would only have tended to prejudice them further by showing that she used these relations for the financial benefit of her family. It may well be that the trial justice could permit the prosecution sufficient latitude on cross-examination to lay the foundation for other testimony that would be material and competent, but the prosecution

The prosecution was permitted to question the defendant on cross-examination as to quarrels between the defendant and her former husband, Andrew Buzzi, while she lived with him previous to her meretricious relations with Schneider, and to show quarrels between the defendant and Schneider’s wife. None of these'matters affected the defendant’s credibility nor did they furnish a motive for the alleged murder or lend probability to the People’s contention that the murder was committed by the defendant. They naturally tended to prejudice the jury against this defendant, and the effect was heightened by the unnecessary and dramatic presentation to the jury of the defendant’s former husband and Schneider’s former wife as silent witnesses against the defendant.

The defendant may not complain that her meretricious relations with the deceased creates a natural prejudice against her, but she has been on trial for her life not because of her manner of living but because she has been charged with the crime of murder, and she has the right to demand a fair trial on that charge alone. By the testimony of the conversation of the detective employed by the attorney with Boyton, the jury have been permitted to infer improperly that she was conscious of guilt; by the introduction of the other matters alluded to she has been charged before the jury with coming of a sexually depraved family, and the sympathies of the jurors aroused for the wronged wife of the deceased and perhaps for the former husband of the defendant, and their prejudice heightened against this defendant. We cannot disregard these matters on the ground that they are trivial or that to some extent their admission rested in the discretion of the trial judge. The cumulative effect of the admission of incompetent evidence and the introduction of extraneous prejudicial matter may well have been so great as to deprive the defendant of the fair trial guaranteed to the vicious as well as to the virtuous. We can

The judgment should he reversed and a new trial ordered.

Hiscock, Ch. J., Gabdozo, McLaughlin and Obane, JJ., concur; Pound and Andbews, JJ., dissent and vote for affirmance under provisions of section 542 of the Code of Criminal Procedure.

Judgment of conviction reversed, etc.