People v. Priori

• Citation: 164 N.Y. 459,58 N.E. 668
• Parties: PEOPLE v. PRIORI.
• Decision Date: 20 November 1900
• Court: New York Court of Appeals

164 N.Y. 459

58 N.E. 668

PEOPLE

v.PRIORI.

Court of Appeals of New York.

Nov. 20, 1900.

Appeal from trial term.

Lorenzo Priori was convicted of murder in the first degree. From the judgment, and from an order denying a motion for new trial, he appeals. Affirmed.

Bankson T. Morgan and Samuel Seabury, for appellant.

Charles E. Le Barbier, for the People.

MARTIN, J.

The judgment appealed from was entered upon the verdict of a jury rendered upon a trial in the supreme court held in the city and county of New York. At the close of the evidence of the prosecution, the defendant asked the court to withdraw from the consideration of the jury the charge of murder in the first degree, upon the grounds that the people had not proved facts sufficient to warrant the jury in finding that the defendant had committed that crime, and ‘that the people have not proved facts sufficient to sustain the crime beyond a reasonable doubt.’ This motion was denied, and the defendant excepted. At the close of all the testimony the defendant's counsel again moved to take from the consideration of the jury the charge of murder in the first degree upon the same grounds, and also upon the additional grounds ‘that the preponderance of evidence shows that the defendant was not guilty of said crime,’ and ‘that the testimony given by the people to sustain the burden of proof of said crime is wholly or in part illegal.’ He also moved the court to direct the jury to acquit him of the crime of murder in the second degree and of the crime of manslaughter. These motions were all denied, and the defendant excepted.

The first question presented by the defendant's exceptions relates to the sufficiency of the evidence to justify the submission to the jury of the question of the defendant's guilt of the crime charged in the indictment. A careful examination of the record renders it obvious that the proof was sufficient to require the court to submit that question to the jury. If the people's witnesses were to be believed, there was not only ample proof of circumstances which tended to show that the decedent was killed by the defendant, but there was direct proof to the same effect.

Under that evidence, the question of the credibility of witnesses, and the question whether the decedent was killed by the defendant, and, if so, whether the act was committed under circumstances constituting the crime of murder in the first degree, were clearly for the jury. People v. Kerrigan, 147 N. Y. 210, 41 N. E. 494; Same v. Youngs, 151 N. Y. 210, 216,45 N. E. 460; Same v. Kelly, 113 N. Y. 647, 648,21 N. E. 122; Same v. Fish, 125 N. Y. 136, 144,26 N. E. 319; Same v. Constantino, 153 N. Y. 24, 35,47 N. E. 37; Same v. Ferraro, 161 N. Y. 365, 376,55 N. E. 931.

No good purpose can be served by reviewing or stating in detail the facts and circumstances established by the evidence, as there can be no reasonable doubt that the proof was sufficient to present a question of fact as to whether the defendant was guilty of the crime of which he was convicted. Hence we content ourselves with the statement that, after a careful examination of all the evidence, we have reached the conclusion that it was sufficient to justify the court in submitting that question to the jury and to uphold its verdict.

Other questions are presented by cartain exceptions taken upon the trial, and by the action of the trial court in denying the defendant's defendant's motion for a new trial, based both upon alleged legal errors and upon the ground of newly-discovered evidence.

Upon the trial one messina, called as a witness for the people, on his cross-examination testified that he visited the defendant while in prison, and admitted that he stated to him that he would not testify against him, because he saw nothing. The defendant afterwards called as a witness one Di Angelo, who, at the time of that conversation was a prisoner in the Tombs under an indictment for the crime of murder in the first degree, and who was brought into court to testify. The court thereupon directed that his attorney should be present to advise him in regard to his rights as a witness. Afterwards the attorney stated to the court that he had seen the witness and informed him as to his rights. The witness then declined to be sworn. The court, however, directed him to take the oath, and stated that it would see that his rights were preserved. It then informed him that he could decline to answer any question that might be put to him. It appears to have been conceded that he was under indictment for the crime of murder in the first degree; that he was in actual confinement, and was brought into court by its order. The counsel for the defendant then proceeded to examine him. The court, in effect, instructed the witness that he might decline to answer any question where the answer would tend to incriminate or degrade him. The defendant's questions were as follows: ‘You are at present a prisoner in the Tombs?’ ‘Did you, some time during the month of January, 1899, in cell 69, meet one Antonio Messina and Mrs. Priori, and at the time the defendant, Priori, was in the same cell?’ ‘Did you on that occasion hear Antonio Messina say that he knew nothing about the case in which Priori was defendant, or anything to that effect?’ The witness declined to answer any of these questions upon the ground that the answer would tend to incriminate or degrade him. The defendant's counsel then asserted that his refusal was not the voluntary act of the witness, but resulted from a statement by the court, and for that reason an exception was taken. To this the court replied: ‘I asked him if he put his ground upon his constitutional rights, putting his constitutional rights to him. If you wish an exception to that, you may have it.’ The defendant's counsel still desired to have his exception noted, and the court then remarked: ‘I informed him of his constitutional rights, and if he places his refusal on that I have got to sustain it.’ To that ruling an exception was taken. The defendant now contends that the privilege of declining to answer these questions upon the ground that the answers would degrade or incriminate the witness was personal to him, and that it was error not to require him to answer. The contention that the privilege was personal to the witness is perhaps correct, but, under the circumstances disclosed, the court was justified in informing the witness of his rights, and when thus informed it is manifest that he personally declined to answer upon the grounds stated. Assuming, as I think we must, that the witness personally claimed his privilege, the question is whether the court was justified in according it to him. Whether such privilege should be allowed or disallowed rested somewhat in the discretion of the court. Where a court can discover from the circumstances that the giving of evidence upon a certain subject may tend to incriminate or disgrace a witness, it has the right, and it is its duty, to sustain his privilege. Before the defendant could claim that this ruling was erroneous, he was at least required to show such facts as would render it clear that an answer to the questions propounded would not incriminate or disgrace the witness. We think the record is insufficient to establish that fact. It was for the court to determine whether, under all the circumstances, the witness should be accorded the protection and privilege he invoked. It does not follow that the witness was not entitled to his privilege, because, upon the face of the question when unexplained, it did not appear that the answer would have the effect claimed. He was entitled to this privilege if the evidence or his examination as a witness would either tend to incriminate him, or disclose a link in the chain of testimony which might convict him, of crime, and was protected, without being required to explain how he might be incriminated by the answer. We think, under all the circumstances, whether this witness should have been required to answer the questions propounded was for the trial court to determine, and rested largely in its discretion. Where such a privilege is claimed the courts have recognized the impossibility in most cases of anticipating the effect of an answer. People v. Forbes, 143 N. Y. 219, 231,38 N. E. 303.

Moreover, the obvious purpose of the defendant's interrogatories was to prove that the witness Messina, at the time referred to, said that he would not testify against the defendant, defendant, because he saw nothing. That fact had already been proved by the witness Messina, and it was undisputed. Therefore, even if it were conceded that the defendant was entitled to prove what occurred in the Tombs when Messina was there, and that he said he would not testify against the defendant because he knew nothing, it could not have affected the result or the credibility of the witness. The witness himself having sworn to that fact, which was undisputed, the defendant had the benefit of the evidence as fully as though it was also proved by the witness called. We are therefore of the opinion that the rulings of the court upon this subject did not constitute error which would justify us in disturbing the judgment below.

The defendant also claims that the remarks of the district attorney in his address to the jury were unwarranted, prejudicial to him, and of such a character as to require the granting of a new trial. We have carefully examined them as set forth in the record, but are unable to find any statement which was unwarranted, or was not a fair argument, comment, or appeal to the jury, except in the respects hereinafter specified. ‘It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege it is most important to preserve, and it ought not to be narrowed by any close construction, but should be interpreted in the largest...