People v. Razezicz

• Decision Date: 08 October 1912
• Citation: 99 N.E. 557,206 N.Y. 249
• Parties: PEOPLE v. RAZEZICZ.
• Court: New York Court of Appeals Court of Appeals

206 N.Y. 249

99 N.E. 557

PEOPLE

v.RAZEZICZ.

Court of Appeals of New York.

Oct. 8, 1912.

Appeal from Supreme Court, Trial Term, Genesee County.

Josef Razezicz was convicted of murder in the first degree, and he appeals. Reversed, and new trial ordered.

William E. Webster and Newell K. Cone, both of Batavia, for appellant.

William H. Coon, Dist. Atty., of Batavia, for respondent.

CHASE, J.

A few minutes before 7 o'clock on the morning of September 15, 1911, Theodore Czarniejewski was killed by the explosion of a bomb near a pump in an open yard at the corner of Summer and South Swan streets in the outskirts of the village of Batavia.

The deceased was a Polish Russian. He married in Russia and came to this country, and to Batavia, with his wife, about 4 1/2 years before his death. In 1910 they moved into a small house facing Sumner street, on a large open lot which included the open yard at the corner of Sumner and South Swan streets. The family consisted of the deceased and his wife, Stella, and their little child about three years of age. They had two boarders, Stanislaus Yadzinski, a brother of Stella, and the defendant, who together occupied the only room and bed on the second floor of the house.

The only person living who saw the explosion is Stella, the widow of the deceased. Her evidence as to the occurrence and the facts immediately preceding and following the explosion are as follows: ‘Friday morning, the day of the explosion, my husband got up first. He made the fire in the stove. About 10 or 15 minutes after Theodore got up, I got up and went into the kitchen.’ She testified that her brother and the defendant came downstairs a little later, and that she got breakfast for them. She then testified that her husband took a pail and went to the pump for water, ‘and he saw that the barrel was fall down, and then he whistled for me come and brother says, ‘Stella, he call you,’ and then I went. I went down the steps and then he made with the hand, ‘Come on, come on;’ then I went. ‘Look,’ my husband said, ‘Look at the barrel. It was standing up and now it is fall down. Here is laying a box and a bag.’ And then my husband took the barrel and put it on end. And then my husband says, ‘Look on that box which is laying there,’ and then we look on that box. Then Theodore said, ‘We have to look what kind is that box.’ Then I said, ‘Don't take that in your hands. It might be something bad in there.’ I said, ‘I will see with my foot what is there,’ and I touched it with my foot, and it was heavy, and that box turned once and second, and then the box stopped. The box looks like a tin can from tomatoes. * * * A little bit thinner, smaller. There was a newspaper around this object. * * * There was a string around it. * * * Around the circumference of the can * * * I just touched it. * * * My husband break the paper open like this, and it made the explosion. * * * Then, when my husband teared the paper on that can, then it exploded, and it strike me on the whole face, and on half of me, and in the feet. Then I did not see nothing, because it goes in my eyes. I was blind. * * * I never saw my husband after that minute. When I looked at the package, when Theodore pulled the paper off, what I saw inside the paper looks like a dark-like cement dark color like cement.'

The defendant is a Lithuanian Russian. He came to this country and to Batavia in April, 1910, and from that time until the time of the explosion was engaged as a woodworker at a factory referred to in the testimony as the ‘woodworks.’ The defendant commenced boarding at the house of the deceased February 7, 1911, and remained there as a boarder from that time until May 25, 1911, when he had some controversy with Stella in regard to his washing, and he was told by her with the approval of her husband to seek another boarding place, which he did. Between that time and June 26, 1911, Stella's brother, Stanislaus, came from Russia, and boarded with the deceased and his wife. It is not very clear whether the defendant suggested that he return to board with Theodore and Stella, or whether the suggestion came from them, or perhaps from the brother of Stella . On the evening of June 26, 1911, Theodore and Stella with her brother, Stanislaus, were at a saloon where they met the defendant, and some conversation was had, which resulted in the defendant returning to board with Theodore and Stella. A part of the conversation was about the bed, and the defendant expressed a desire for a better one than he had had, and offered to advance $10 to purchase it. The contract for board was simply an agreement that the defendant should have his room with Stanislaus, and that Stella should care for the room and cook for him the food which he should furnish, and he was to pay therefor $3.50 per month. The $10 was advanced and it seems to be assumed that such advancement by the defendant paid his board with Theodore and Stella as stated until after the explosion.

The people were unable to produce any direct evidence as to who made the bomb, or who placed it near the pump where it was at the time of the explosion. On week prior to the explosion there had been two other explosions following one another with an interval of about a minute in another part of the village about one-half mile from Sumner and South Swan streets. The first one was on the porch of a house and store of an Italian named Colaizze. It tore a hole in the side of the house and the floor and ceiling of the porch. The second one tore a hole in the cement sidewalk. A piece of yellow pasteboard, cylindrical in shape, was found after the explosion. It was the only substance identified as being a part of the bombs that were exploded. It did not have the appearance of the outside paper of a dynamite stick. Colaizze was then foreman in the work of building a sewer in the village, and an Italian named Ricci had at one time been the foreman on the work . A few days before the explosion that killed Theodore he (Ricci) had moved an old house on a vacant lot near Sumner and South Swan streets, and had commenced placing a foundation under it. On the morning of the explosion a fellow workman of the defendant went to one of the peace officers of the village, and told him that about two months before the defendant fired a bomb in a grove near the Tonawanda creek. The defendant told some of the officers of the village that Ricci and other Italians had taken water from the pump to be used in mixing the cement in building the foundation under the house mentioned,and that the pump was broken, and Theodore had to repair it, and that he was angry and sware. The defendant, Ricci, and the other Italian, the tenant in the building under which Ricci was building a foundation, were arrested, each charged with the crime of killing Czarniejewski. After the preliminary examination Ricci and the other Italian were discharged, and each left Batavia. The defendant was indicted and tried and found guilty of murder in the first degree. From the judgment of conviction this appeal is taken.

After the explosion ten slugs were taken from the person of Theodore, four from the person of Stella, and many others from the hole in the ground made by the explosion, and also from the surrounding property. One was found more than a quarter of a mile away from the place where the explosion occurred. These slugs each consist of a small, irregular piece of an imitation babbitt metal. No wood, glass, plaster of paris, or other substance other than such slugs and the powders and paint on them hereafter mentioned that could have been a part of the bomb were found. On some of the slugs was discovered a very small quantity of a white and also of a yellow powder. On several of them was a green paint. Experts examined the slugs and applied different tests, and from their report it is reasonably certain that on such slugs was a small quantity or trace of chlorate of potash, sulphur, and of plaster of paris. The person of Theodore was horribly mutilated, but on one side of the face and on one ear were certain grayish markings that the experts testified were, or at least may have been, burns by nitric acid. It also appears with reasonable certainty that chlorate of potash in a dry, granulated form, when mixed with some lighter carbonaceous substance, like sawdust and with sulphur, may be ignited with nitric acid and produce an explosion of greater strength and power than a similar quantity of dynamite. Not every combination of chlorate of potash, sulphur, and of a light carbonaceous substance will explode as expected or planned when nitric acid is applied. Such combination makes a powerful explosive, but one that is somewhat uncertain in practical use, and not generally used or prepared for commercial purposes. It is the theory of the prosecution that the bomb consisted of chlorate of potash and sulphur mixed with small pieces of paper, and that such substances, together with the slugs, were rolled in or held together by plaster of paris or placed in a box covered by plaster of paris, and that a bottle of nitric acid, uncorked, was so placed that the acid would not run from the bottle as it was deposited as a part of the bomb, near the pump, until the bomb was moved, and that when the bomb was touched by the foot of Stella and turned over the acid ran out upon the other substances, and the explosion occurred within a few seconds.

The people produced testimony from which it was successfully urged before the jury that the defendant was familiar with explosives; that he had, or had an opportunity to obtain, the materials with which to make the bombs; that he made and placed the bomb where it was found; that there was a motive which induced him to kill Theodore; and that he was guilty of the homicidal act. On the night preceding the explosion the defendant received a letter from his father which is in evidence . The letter made him sad and he was in tears. That...