p. 166The People, Resp’ts, v. Raffaele Izzo, App’lt.(Supreme Court, General Term, First Department,Headnote
Criminal law—Carrying concealed weapons—Penal Code, § 410—Evi-dence.On the trial of a person charged, under Penal Code, § 410, with carrying concealed weapons with intent to use the same upon another, it was error to permit the officer who arrested him to testify that a third party, Grandi, at whose instance he was arrested, stated, in the presence of defendant, that defendant had previously drawn the dagger in a saloon and threatened to stab him, where it appeared that Grandi spoke to the officer in English, which the defendant spoke so slightly that the officer could not understand or communicate with him. This statement so introduced evidently overcame the presumption of innocence which arose from defendant’s good character and his declaration that he picked up the knife accidentally.
Appeal from a judgment of conviction of the crime of carrying a dagger concealed upon the person with intent to use the same upon another. Upon the trial the police officer who made the arrest testified that on arresting the defendant in Elizabeth street, in the city of New York, at the instance of one Michael Grandi, he then and there searched defendant and found a dagger concealed upon his person in an inside coat pocket; that at the station house Grandi stated, in the presence of defendant, that in a saloon on Elizabeth street defendant had drawn the dagger and threatened to stab him. Defendant testified in his own behalf that he was a musician, and that he found the dagger in the street a short time before his arrest, and that he intended taking it home for household purposes, and that he did not intend to úse it upon any person.
Charles E. Barbier, for app’lt; Delancey Nicoll, dist. att’y, for resp’ts.
—I think that justice requires a new trial in this case and that it should be granted under the authority conferred by § 527 of the Code of Crimimal Procedure. The People did not rest upon the presumption created by § 411 of the Penal Code, but attempted to prove the intent to use the dagger in violation of § 410 by direct evidence. Thus the policeman who arrested the defendant and found the dagger concealed upon his person was permitted to testify that one Grandi declared in the presence of the defendant at the station house that he, Grandi, “ was in a saloon on Elizabeth street and the defendant took the knife out of his pocket and said that he would stab him.” This testimony was highly prejudicial to the defendant and undoubtedly affected the consideration of his subsequent explanation with regard to the possession of the dagger. Ordinarily such testimony would have been admissible, but here it appears that Grandi spoke to the sergeant in English and that the defendant could not speak our language or else spoke it so slightly that the officer could not understand or communicate with him. It is quite apparent that the defendant did not comprehend the charge made by Grandi and that, so far as any possibility of denying it on the spot was concerned, that charge might as well have been made to
p. 167the sergeant in the defendant’s absence. The learned recorder very properly suggested at the close of the case that the district attorney should have called Grrandi as a witness. I think, too, that he should have called the sergeant. As it was, this defendant was convicted solely upon the testimony of the officer who arrested him, to the effect that he found the knife upon the defendant’s person. It is true that this fact raised the presumption declared by § 411, but the defendant’s effort to rebut that presumption should not have been nullified or weakened by the declaration of a third person, which he was no more in a position to deny at the time and under the circumstances it was made than if he had been absolutely deaf.
This defendant was shown to be a man of good character, engaged in a reputable calling, for nine years a resident of this country and a man of family. He testified without contradiction that he never carried a knife such as was found upon him; that he had never before been arrested or been in any trouble; that he picked up the knife in question accidentally and that he had no other intention than to take it to his home. Of course the jury were the judges of this story, and it was for them to say whether the presumption raised by § 411 was thereby rebutted. But it is quite clear that in weighing the defendant’s explanation the scale was turned in favor of the presumption by Grrandi’s declaration at the station house.
I think a new trial should be ordered.
Van Brunt, P. J., and Patterson, J., concur.