People v. Ferone

The defendant has been convicted of murder in the second degree for shooting his wife, Annie Ferone, in a room in which they lived together in a flat occupied by his parents at No. 260 East Forty-Fourth street, on Saturday the 5th day of March, 1904, at about midnight. It was clearly shown by uncontroverted evidence

We are of opinion that the guilt of the defendant was satisfactorily established, and that he had a fair and impartial trial, without the commission of any error prejudicial to his rights. It may be observed, at the outset, that since the defendant saw fit to take the stand in his own behalf, and is the only living eyewitness to the shooting, if he has testified untruthfully, the evidence adduced by the people should and may be safely taken most strongly against him.

They were married in Boston on the 23d day of December, 1902, after having met once in New York three or four years before and again by chance in Boston a month previous to the marriage. He was then only 18 and she 16 years of age. They lived together in Boston little more than a month, when, according to his testimony, she left him “because I lost my job,” and he ascertained later on that she went to live with a man named Young, who was a waiter. She was a wayward girl, and had run away from home at the time she married the defendant, and had run away for short periods twice before, and on one of these occasions was found by her mother in a police station. After leaving the defendant, she was arrested on the charge of having stolen a pocketbook, and imprisoned six months in an institution in Boston referred to as the “Mission.” The defendant called on her a few times at the mission, and subsequently came to New York and lived with his parents. It has not been clearly shown where she lived while separated from her husband, other than the period of her confinement in the “Mission.” Notwithstanding the misconduct of his wife, of which he appears to have been fully aware, he was anxious to resume marital relations with her and requested her to return to him and sent her money to defray the expenses of the journey. She arrived in New York on the 17th day of January, 1904. He met her and took her to live with him in the room where the shooting occurred. At the timé of the homicide, the defendant was working as a bootblack, and his wife was employed as a waitress at Holmes’ restaurant, No. 2140 Third avenue, where she had been employed about three weeks; her hours of labor being from 10 a. m. to .7 p. m. Evidently she remained out late nights, and the defendant became suspicious of her conduct. The day before the shooting she came to work an hour earlier than usual, and was crying. She was quiet and cried more or less throughout that day. That evening defendant called at the restaurant at 8 o’clock and inquired for her, and was informed that she had left at 7 o’clock, and never remained after 7, at which he appeared surprised, and stated that he supposed she worked until 10 or 11. She did not return home that night, according to the testimony of the defendant', until about half past 3 a. m., and then said to defendant, who was in bed, that her mother was sick with diphtheria, and, when

According to the testimony of the mother-in-law, he informed her that his wife came home late the night before crying, and said that her mother was sick, but that she subsequently admitted that this was not true, and then claimed that she had been to the theater with her mother and sister. The mother-in-law also testified that he complained that his wife was spending all of her money, having a new waist and a new pin, and that some of her dresses were missing. That she said to him that she had given her daughter the pin, and that she had never had any trouble with her daughter “until that young man took her away from my house, and then my trouble began.” That he thereupon said: “If I knew that Annie done such things as she says, I could almost kill her. I don’t know what prevented me last night from doing it.” That he said he wanted to go out the night before “with the revolver,” but that his mother had it “closed up” in her room and would not give it to him. That she then manifested alarm, whereupon he said: “I only want the revolver for my self-defense, because it is such a lonely place.” That the postman brought two letters for her while he was there and delivered them to her daughter, from whom the defendant took them and examined them, observing that they had come from Boston. That she then demanded the return of the letters and opened and read them, and said that she had written to Boston to learn how his wife had conducted herself there. That he requested and urged that he be permitted to see the letters, and be informed from whom they came; but that she refused his request. That, in urging her to permit him to see the letters, he manifested a willingness to do anything for her, and she then said to him that she deemed it advisable that she take her daughter back to live with her, and expressed the view that she could get a divorce from him, because she was under age, to which he replied that she could not do it, and cited a case that had recently appeared in the newspaper, where, he said, “The same thing happened, that the man wanted to take, the girl away, and he couldn’t do it.” That he said, in answer to a question as to how his wife was that morning: “She is again all right. She went to work and kissed me when leaving.” That the witness thereupon said to him: “If you think she is not good to you, why don’t you watch her? You know where she works, and you know when she stop's working and leaves the place. Then I would stay there outside, and see if she does anything wrong.” To which he replied: “Well, I don’t know. I haven’t got much time. I’ll see what I can do.”

The defendant testified that about 7 o’clock that evening^he met his wife, and they went to the Star Theater at lOYth street and Lexington avenue. That, after the theater was over, they went home, arriving

Moreover, his story is improbable in other respects. According to his testimony, the only reason assigned for his wife attempting to hit him with the ice pick, and subsequently attempting to shoot him, was his persistence in insisting that she must refrain from going with other men or go back to her mother. Even though she may have been independently inclined, as he testified, and may have decided to disregard her marital obligations and to go out with other men when and as she pleased, it is difficult to believe that she could have been so mentally constituted as to regard his remonstrance against such conduct as so unreasonable and unjustified that, if he would not submit to her living with him as his wife with the privilege of going with other men as she pleased, she would take his life. He gives no satisfactory account of the purchase of the revolver. He claims that he purchased it at a hardware store down town in the month of December, before, for protection; but he claimed to be unable to specify the store at which he purchased it. He admits that after purchasing the revolver he loaded the five chambers with cartridges, and says that he then before she returned to live with him placed the revolver in the hat box on the shelf above the ice chest, where it could hot be reached by him or by her without standing on a chair. No chair was found in the room by the officers who entered it shortly after the shooting. He claimed that she took the hat box from the shelf after returning from the theater and uncovered it with a view to putting her hat in it; but the cover was found on the box, and a hat, evidently the hat she had worn, was hanging on the door. Her body was found as if she had been standing against the side of the bed, or sat upon it at the time she was shot, for her feet were resting on the floor and the body reclining backwards upon the bed. One bullet had penetrated the abdomen, and the'other entered her bosom between the first and second ribs, passing through the heart and causing death. It is not only improbable that the revolver could have been twice cocked and discharged accidentally, as testified to by the defendant, but that testimony is rendered the more improbable by the fact that both balls entered the body of his wife; neither having touched him nor having been discharged into the room without touching either of them.

Instead of manifesting regard or grief over the death of his wife, he immediately put on a soft hat, turned up his coat collar, and left the building, and made his way to the city of Philadelphia, where he was found six weeks later, receiving mail at the general delivery of the post office under the assumed name of “E.

It is difficult to understand the appellant’s criticism of receiving this confession in evidence. It was satisfactorily proved. The defendant admits that he was brought into the room in the presence of the officers, and that Crawford asked him questions and was writing, and that he' subsequently signed the paper; but he denies that he answered any question. He admits that all of the facts, with the exception of the statement concerning the shooting of his wife, contained in the statement, were true; and he does not claim that his signature thereto was induced either by duress or false representations. He makes the bold assertion that he was hungry and thirsty, and that on the way to headquarters Pinkerton promised that he would receive food after arriving there; but he does not say that he was promised food or drink on condition that he signed the statement, or that they were expressly denied to him until he made a statement. Pie denies that he heard the original statement read, or read the copy, and claims that the papers were so folded when he Signed that he was not permitted to read any of the contents. That merely presented a question as to the weight of the evidence, but it did not render the confession incompetent. He is unable to assign any reason for having signed the statement, other than

Officer Petrosine testified that on the way from Philadelphia to New, York the defendant asked him, “Do you think I made a mistake in making that statement, that confession?” and, upon receiving no answer, further asked, “Do you think they will send me to the electric chair ?” and, upon receiving no answer to this, said that he was foolish to have killed his wife and made no claim that the killing was accidental. The defendant denied this conversation. The revolver was found in the room with three empty and two loaded shells. He testified that his wife bought a new hat in February, and asked if he had a box for her to put it in, and says that he then took this hat box containing the revolver down and gave it to her, and that she saw the revolver. There were two hat boxes found on the ice chest with covers on 'and hats in them. She might have taken the revolver out of the hat box before he discovered her movements; but it is not reasonable to suppose that she would remove the revolver with intent to use it immediately on him, and delay action while she was placing the cover on the box, or that if she had done so he would not have discovered it.

It is claimed that the death of the defendant’s wife is not shown, to have been caused by one of the bullets fired from the revolver, and that the body upon which the autopsy was performed, and concerning which the expert testimony was given, was not properly identified as that of defendant’s wife. We deém it unnecessary to ’discuss these contentions in detail. The death of the defendant’s wife was proved by direct evidence, and the death of the woman upon whom the autopsy was performed, which was satisfactorily identified by circumstantial evidence as that of his wife, was shown by competent medical evidence to have been produced by a bullet which pierced her heart, and was shown by other evidence to the satisfaction of the jury, and to our satisfaction, beyond a reasonable doubt, to have been fired by the defendant, which is sufficient to sustain his conviction. People v. Benham, 160 N. Y. 402 , 55 N. E.11; People v. Palmer, 109 N. Y. 110 , 16 N. E. 529 , 4 Am. St. Rep. 423 ; People v. Way (App. Div. 1st Dept. May, 1907) 104 N. Y. Supp. 277 ; People v. Deacons, 109 N. Y. 374 , 16 N. E. 676 ; People v. Burness, 178 N. Y. 429 , 70 N. E. 966 ; People v. Lagroppo, 90 App. Div. 219 , 86 N. Y. Supp. 116 , affirmed 179 N. Y. 126 , 71 N. E. 737 ; People v. O’Connell, 78 Hun, 323 , 29 N. Y. Supp. 195 .

The learned counsel for the appellant also complains of the charge of the learned court, and particularly of the allusion therein to the fact that the Eegislature has provided for a review of such cases by Appellate Courts at the expense of the state. These remarks were evidently made with a view to impressing upon the jury the importance of taking the law from the court; the intention apparently being to show the jury that they need have no concern concerning an error upon the law by the court, for the reason that ample provision was made for a review. On an exception being taken to the remarks, the court expressly instructed the jury that they must discharge their duties without regard to the fact that provision had been made by which an appeal might be taken. ' It is claimed that the effect of the instructions was to render the jury less attentive and careful in the discharge of their duties. We are of opinion that it did not have that effect.

The learned counsel for the appellant also complains that the court drew the" attention of the jury to the testimony of the mother-in-law concerning her conversation with the defendant the morning of the homicide, in which he spoke of killing his wife, and did not draw their attention to the fact that the defendant denied this conversation, or to the fact that his mother testified that she did not have his revolver. It is not the duty of the court to draw the attention of the jury to ever}' item of evidence. The jurors must have remembered that this testimony was controverted, and, if the learned counsel for the defendant thought that the jury did not recall that fact, or might infer that the court deem'ed the controverting testimony untrue or unimportant, he should have drawn it io the attention of the court.

In the course of the charge, the court referred to a suggestion, made on the argument of the case, as to whether it was possible for the wife to have killed herself, and directed the attention of the jury to the question as to whether, if, in view of the position and course of the wounds, it was likely that they were .self-inflicted, and whether the defendant would have left the room, and left the city that night, if his wife committed' suicide. Counsel for the defendant thereupon excepted to the remarks of the court, and expressly disclaimed the theory of suicide, whereupon the court withdrew the remarks. The inference is that the learned district attorney, with a view to satisfying the jury beyond a reasonable doubt that the death of the defendant’s wife was caused feloniously, argued to the jury that it was not possible that the wounds could have been self-inflicted. Without intending to hold that the comments of the court were not fairly within the bounds of judicial discretion, we are of opinion that with the withdrawal of the remarks there remains no. ground for just criticism.

“If you find that it was 'the defendant who shot his wife, you may take into consideration, upon the question of design, the statement that he is alleged to have made to the mother of his wife on the morning of the day of the shooting, if true, his going for her on that night to the restaurant, his taking her to the theater, his taking her to the room after the theater, the character of the weapon used, and the number of shots that were fired from the weapon.”

The learned counsel for the appellant excepted to those remarks. The criticism is that, being her husband, he had a right to go to the restaurant, escort her to the theater, and take her to their room. That ’ proposition is so elementary that the jurors must have understood it. The learned court did not say that each of these facts was evidence of guilt, or was to be weighed against the defendant. He merely alluded to the evidence on these points as being the important evidence upon which the question of the presence or absence of guilty intent was to be determined. We are of opinion that the jurors were not misled by these remarks of the court to the prejudice of the defendant.

It follows that the judgment should be affirmed. All concur.