People v. Giordano

• Decision Date: 19 January 1915
• Citation: 213 N.Y. 575,107 N.E. 1069
• Parties: PEOPLE v. GIORDANO.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 575

107 N.E. 1069

PEOPLE

v.GIORDANO.

Court of Appeals of New York.

Jan. 19, 1915.

Appeal from Court of General Sessions, New York County.

Gregorio Giordano was convicted of murder in the first degree, and from a judgment entered upon the verdict, he appeals. Reversed, and new trial ordered.

S. A. Singerman, of New York City, for appellant.

Charles S. Whitman, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

SEABURY, J.

[1][2] The indictment upon which the defendant has been convicted charges him with feloniously and of his malice aforethought causing the death of Salvatora Giordano on August 10, 1913, in the county of New York, with a certain (shoe) last. In considering the questions presented for review it is necessary to have in mind the environment in which the deceased and the defendant lived, the relationship existing between them, and the circumstances proved to have surrounded the killing of the deceased. The judgment of conviction is not challenged because of any alleged technical objections, but is assailed upon the more fundamental ground that the evidence offered upon the trial is insufficient to support the conclusion reached. We are called upon, therefore, to determine whether the conclusion at which the jury arrived is fairly and reasonably supported by the evidence. No direct or positive proof of guilt was offered. The evidence presented was wholly circumstantial. If the conclusion reached can be sustained, it must be because it can fairly and reasonably by inferred from the facts proved. If neither the facts proved nor the inferences fairly and reasonably arising from them establish the guilt of the defendant, then it is manifest that the judgment rests upon a basis insufficient in law to sustain it. The defendant has been in the United States for about 2 years. He was born in Vizzini, province of Catania, Italy, 41 years ago . Prior to his coming to the United States he lived for a time in Buenos Ayres, and from thence returned to Italy. From May, 1913, up to the time of his arrest he worked as a laborer upon subway work in the city of New York. The deceased was at the time of her death the wife of the defendant. She was 38 years of age, and at the time of her death had been in this country about 6 months. When the defendant was in Italy he had met a brother of the deceased, and the prospective marriage of the defendant and the deceased was discussed. After the deceased arrived in the United States the question of her marriage to the defendant was again discussed. Up to this time the defendant and the deceased had not met, and the arrangement for the marriage was conducted by Paola Montarto, who is referred to in the testimony as a messenger. A civil marriage was performed between the parties March 31, 1913. The evidence shows that before this time the defendant and the deceased had met only two or three times. It appears that the parties did not consider the civil marriage binding unless it was followed by a religious ceremony. It was agreed between them that this religious ceremony should take place 3 weeks after the civil marriage. In the meantime the deceased returned to the home of her brother. the defendant seems to have exhibited some reluctance in entering into the religious ceremony, and a summons from the Domestic Relations Court was served upon him. After this the religious ceremony was performed, and the defendant and the deceased lived together as husband and wife. The defendant explained that his reluctance to enter into the religious ceremony was due entirely to the fact that all his savings, amounting to $300, had been stolen from him, and that he was without money to fulfill the obligations which he had assumed toward the deceased. However this may be, it does appear that after this explanation was given to Montarto, the messenger, and to the brother to the deceased, the defendant borrowed some money from a friend and the religious ceremony was performed. There is no proof in the record indicating that from that time to the day of the death of the deceased they did not live happily together. The defendant continued his work as a laborer, earning $1.60 per day, and the deceased worked in a rag shop earning from $4 to $5 a week. This is substantially all we know of the defendant and the deceased prior to August 10, 1913, when the deceased was killed. The 10th of August fell upon a Sunday, and consequently the defendant and the deceased were not required to go to work. Most of the day they spent at their home, and had breakfast, lunch, and dinner together. The defendant testified that in the evening his wife went out to get some one to write a letter for her to her brother in Chicago. Mrs. Cucce, who was called as a witness for the prosecution, testified that the deceased called upon her at 7:30, and that she wrote a letter for her to her brother, and that in the letter the deceased sent her husband's regards to her brother. Mrs. Cucce says that the deceased left about 8 o'clock. The deceased and the defendant were seen together at about this time by several witnesses in the neighborhood of their home in Mott street. This is the last time that any person, other than the defendant, claims to have seen the deceased alive. The defendant testified that they went home; that he told his wife he was tired and he went to bed; that his wife said that she had forgotten to mail her letter, and that she would go out and mail it. The defendant says that he fell asleep, and did not wake up until early the next morning, and that at that time his wife was not in the room. Between 10:10 and 10:30 on Sunday night an engineer named Allen, coming from his motor boat, which he had left at Cold Spring Harbor, and walking through a stretch of woods known as Cold Spring Grove, found the body of a woman lying on her back in the road. It was the dead body of the deceased. Cold Spring Grove is at Inwood, which is near 207th street in the county of New York, and is about 10 miles from the home of the deceased. At 9:45 that night a grocer named Muhler, in company with seven other men, coming from their boats, which they had left at the harbor, passed over the same road, and saw no one at that time. From this testimony it is evident that the deceased was killed after 9:45 and before 10:10 or 10:30 that night. The place where the body was found was a lonely spot in the woods. The body was found in ‘a pool of blood.’ The skin, muscles, and soft tissues of the neck had been entirely severed down to the spinal column. There was a large wound on the back of the head just above the right ear, and another similar wound on the left side a little lower down behind the ear. In addition to these wounds there were about 25 small wounds on the face and scalp. The coroner's physician found an extensive compound fracture of the skull, and gave it as his opinion that this fracture was the cause of death. When Allen discovered the body he communicated with the police authorities, who, responded shortly thereafter, and from that time they had the body under observation until it was removed to the morgue.

About five feet away from the body a knife was found, and about six feet away from the body a shoe last ‘full of blood stains' was found. It is not claimed that the ownership of the knife was ever discovered, and no testimony upon this subject was offered, and it plays no other part in this case. The iron on the shoe last is said by a police officer to have ‘fitted into the cut on the head’ of the deceased, and one of the physicians who examined it and examined the body of the deceased gave it as his opinion that it could have caused the death of the deceased. This shoe last may be said to be the pivot upon which this case turns. The prosecution claims that it was the property of the defendant, and the acceptance of this claim by the jury is the only basis upon which the judgment of conviction rests. If this shoe last was not the property of the defendant, then it must be conceded that there is no evidence in the record sufficient to sustain the...