People v. Fiori

We all agree that the learned trial justice was right in overruling the defendant’s demurrer to the indictment, and in refusing to sustain his challenge to the panel of jurors. There is, however, a division among us upon other questions so serious and of such a character as to lead to opposite conclusions in the disposition of this appeal.

The three principal characters who figure in this tragedy, are Francesco Fiori, Charles G. Babcock, 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 17 years of age, an Italian by birth, a common laborer, and had been in this country about three years. Babcock was 20 years old, and Moulton 18. 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 $5 bill changed in the saloon,-and there was found in his pocketbook after his arrest nearly $10. 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 arid Babcock. It is contended on behalf of the prosecution that the defendant wanted to get rid of Moulton; that he had suggested to Moulton that he had better go home; and that after Moulton left the defendant lured Babcock to a dark place, by a roundabout way, intending to kill him out of revenge for a wrong that Babcock had done him about two months before, and that he accomplished his purpose. The defendant admits the shooting, but contends that Babcock took him to this place, and that Moulton and Babcock attacked him there and attempted to rob him; that what he did was done in defending himself, and was justifiable, or at all events not criminal. 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;

Upon cross-examination he stated:

“When I hear Charlie say something about money, I walks up to them and I says: ‘Here, what’s this about? What’s the matter with yous fellows?’ or something like that.

“Q. Whom did you say that to, Charlie and the Italian both? A. Yes, sir.

“Q. They weren’t quarreling then, were they? A. No, sir.

“Q. Didn’t have their hands on each other? A. No, sir. * * * And when I made the remark, ‘What’s this? What’s this?’ they both turned around, and saw me. They must have seen me.

“Q. And then what was the next thing that occurred "after the Italian and Charlie turned around and saw you? Was anything more said? A. No, sir. The Italian ran out into the road.”

That Babcock chased him, following close behind the defendant. That the shot was fired when they clinched. That the defendant ran into the road toward the light. That it was quite dark down by the telegraph pole. He admitted that at that time he (Moulton) did not have a cent and Babcock had but five cents.

What occurred, according to the defendant’s testimony, may be best stated in his own words. He testified:

“As soon as we got here 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? Why should he be here? • He is going to kill me now.’ As soon as I saw Moulton here, I was scared. Moulton says to him: ‘He’s got money. I-Ie’s got money.’ Charlie said to me: T want your money.’ I said to him: ‘Leave me alone, leave me alone. I want to go home.’ I made four or five or six steps to return this way, and when I was going this way I saw Moulton grabbing me, and I stepped in this way, and turned back. [Witness illustrates.] I returned back because I saw Moulton coming that way. Charlie grabbed me by the legs in this way, and threw me on the ground this way, and grabbed me by the neck and had his knee on my abdomen, and Moulton grabbed me by the feet. He says: ‘Give me your money, give me your money, son of a bitch. I want to kill you.’ I couldn’t breathe because he grabbed me strongly on my neck. I was doing this way [illustrating], and my eyes were sticking out. I did this way, and I went this way, and I shot in the air to scare them out. I shot this way, just like this [indicating]. When I shot the first time; they wouldn’t let me go. Both of them got up when I shot the other one in the air. Then they let me go. They both disappeared, and I did this way [illustrating], and ran away. I ran down home when I ran away.”

After his arrest on the night of the shooting, the defendant denied that he did the shooting, and also claimed, after being taken into custody, that there was a fourth person present who did the shooting, but upon the trial he admitted that he himself did it, as has been stated.

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

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 ohe. 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, and 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 this 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 could remember, was “Leave me alone” or “Go home”; that he heard the word “home” quite distinctly, and that it was in broken English; that he heard no one say or yell “Charlie” in a loud voice. Moulton testified that he screamed out, and made a loud scream, calling the name “Charlie.” Moulton himself testified that the defendant could not talk English very well; that he had some difficulty in understanding him; that his language was broken, and proof of the same character appears by the testimony of other witnesses who heard the defendant talk, and it is also quite evident from defendant having given his testimony through an interpreter.

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,

The witness Moulton was asked whether he frequently went down on River street. The question was objected to, and the objection was sustained, to which the defendant excepted. Witness was then asked this question:

“Q. You have visited, very frequently houses of ill repute? (Same objection.)

“The Court: I think you ought to be 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 visits houses of ill repute and consorts with low women to affect character; that is all. I understood, of course, the ruling—

“The Court: The objection is sustained. (Exception for defendant.)”

We think the question was proper (People v. Giblin, 115 N. Y. 196 , 199, 21 N. E. 1062 , 4 L. R. A. 757 ; People v. Webster, 139 N. Y. 73 , 84, 34 N. E. 730 ; Underhill on Criminal Evidence, § 254), although it was discretionary with the trial court to permit the answer to be given (La Beau v. People, 34 N. Y. 223 ; People v. Braun, 158 N. Y. 558 , 53 N. E. 529 ). Such discretion, however, is subject to review in this court. People v. Dorthy, 156 N. Y. 237 , 244, 50 N. E. 800 . 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. Judgje 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 tire 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

“Q. To be perfectly honest about it, you cannot describe a feature of this defendant, can you? A. No; not to be positive.

“Q. And you couldn’t that night either, could you? A. I didn’t take any particular pains to.

“Q. You didn’t take any particular notice of the man, did you? A. Well, I knew him—

“Q. No, sir.

“Mr. Pitcher: I object to the counsel repeating what he claims is the answer of the witness. The answer was not, ‘No, sir.’

“The Court: I suppose the counsel states what he would like to have for an answer.

“Mr. Wilcox: I object to that remark.

“The Court: In the first place, the rules of the Supreme Court forbid repeating at all the answer of the witness; and, in the next place, if you do undertake to repeat, you ought to repeat it with reasonable faithfulness.

“Mr. Wilcox: I mean to. I don’t wish any insinuation cast on me that I want to be unfair at all.

“The Court: Omit attempting to repeat, and then you won’t make any mistake.”

If there was sufficient to justify the remark excepted to, it is not disclosed by the record; and it may have been prejudicial to the defendant. 12 Cyc. Law & Procedure, 538.

It is also contended on defendant’s behalf that evidence of his confessions 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. Y. 449 , 24 N. E. 923 ; People v. White, 176 N. Y. 331 , 350, 68 N. E. 630 ; Woodworth v. Brooklyn Elevated R. R. Company, 22 App. Div. 501 , 48 N. Y. Supp. 80 .

Certain experimental evidence was admitted against objection and exception of the defendant. One of the police officers cut pieces of cloth 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 1 to 48 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

“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 reference to the revolver and cartridges by using the same kind as those used by the defendant, and it was also attempted to comply with the conditions regarding the atmosphere, for the test seems to have been made on a rainy day; it appearing that it was wet and rainy the night when the homicide was committed. And so it was also sought to bring it within the conditions of Babcock’s clothing. It appeared in addition that the portion of Babcock’s coat which the bullet penetrated contained powder, and the lapel appeared to be burned or scorched. 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 48 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 Or. 178 , 8 Pac. 337 , 50 Am. Rep. 470 , 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 similarity of conditions to make evidence of that character competent.

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

The trial judge read to the jury section 205 of the Penal Code, relating to justifiable homicide, charging them that, if they found the case to be one of justifiable homicide, their verdict must be for the defendant, saying in that connection:.

“The rule with reference to that, in addition to the statute to which I have called your attention, has been laid down by the Court of Appeals of this state in the following language: ‘Before a party can justify the taking of life in self-defense, he must show that there was a reasonable ground for believing that he was in great peril, that the killing was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack, if in his power to do so, and the rights of attack for the purpose of self-defense' does not arise until he has done everything in his power to avoid its necessity.’ ”

Under the first 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 second subdivision such a homicide was also justifiable in the actual resistance of an attempt to commit á 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.”

“That X charge, calling attention again to what I read from the Court of Appeals.”

Similar requests, embodying the facts in substance as the defendant claimed them to be, were made, and the same reply given to each of them, counsel for the defendant also calling attention to the fact that he did not claim that the shooting was justifiable in self-defense, under section 26 of the Penal Code, but that it was justifiable under the provisions of section 205. Exceptions" were taken to the charge as made, and particularly to the refusal to charge the requests, and to the qualifications made by reading the excerpts from the Court of Appeals decisions. 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 be killéd in such attempt, the slayer should tie acquitted and discharged; and then points out the distinction between such a homicide, and homicide in self-defense, or se defendendo 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 of 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. Bishop on Criminal Law, §§ 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 him or to commit any felony upon him (2 Rev. St. p. 660, § 3, subd. 1), although it was also provided that a person who unnecessarily kills another ‘while resisting an attempt of such other person to commit a felony, or to do any other unlawful act, should be deemed guilty of manslaughter in the second degree (2 Rev. St. p. 661, § 11). 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. But if the defendant was thrown to the ground, and Babcock and Moulton were actually robbing him,

“Without undertaking to define the boundary line which separates the lawful and authorized from the hnauthorized and illegal acts of individuals in the protection of property, the prevention of crime, and the arrest of the offenders, it is enough that the law will not be astute, in searching for such a line of demarcation as will take the innocent citizen, whose property and person are in danger, from the protection of the law, and place,his life at the mercy and discretion of the admitted felon. They will not he made to change places upon any doubtful or uncertain state of facts.”

And it may be suggested here that if the defendant was thrown to the ground, being robbed by Moulton and Babcock as he claims, one having hold of his legs, the other on his abdomen, choking him, demanding his money, the defendant ought not, in the actual resistance thereof, be called upon to weigh with nicety the question whether an. outcry or other means short of taking the life of the person robbing him would answer the purpose of preventing the robbery. He was not only in great peril, but he had a right to do whatever was necessary to prevent being robbed, even to the extent of killing his assailant.

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

Judgment and orders reversed and new trial ordered. All concur, except MCLENNAN, P. j., and SPRING, J., who dissent upon the ground that the evidence fairly establishes the guilt of the defendant, and that there were no prejudicial errors committed.