304 N.Y. 80, People v. Hetenyi

Citation:304 N.Y. 80
Party Name:People v. Hetenyi
Case Date:April 23, 1952
Court:New York Court of Appeals
 
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304 N.Y. 80

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

GEORGE HETENYI, Appellant.

New York Court of Appeal

April 23, 1952

Argued January 21, 1952.

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COUNSEL

George J. Skivington and George J. Skivington, Jr., for appellant. I. The trial court erred in admitting into evidence the gun holster and in its other rulings in connection therewith. (People v. Woltering, 275 N.Y. 51; People v. Kinney, 202 N.Y. 389; People v. Hill, 198 N.Y. 64; People v. Del Vermo, 192 N.Y. 470; Wurtzman v. Kalinowski, 233 A.D. 187; People v. Jackson, 255 A.D. 688; People v. Giordano, 213 N.Y. 575; People v. Razezicz, 206 N.Y. 249; People v. Galbo, 218 N.Y. 283; People v. Suffern, 267 N.Y. 115; People v. Lewis, 275 N.Y. 33.) II. Prejudicial error was committed in the summation of the District Attorney. (People v. Wolf, 183 N.Y. 464; People v. Minkowitz, 220 N.Y. 399; People v. Watson, 216 N.Y. 565; People v. Leavitt, 301 N.Y. 113; People v. Forte, 277 N.Y. 440; People v. Fielding, 158 N.Y. 542.) III. Prejudicial error was committed by the District Attorney in his summary in ascribing to defense counsel knowledge on the subject as to where the crime was committed. IV. The District Attorney's attack upon defendant on religious grounds and on defendant's changes in religion were prejudicial.

Clarence J. Henry, District Attorney (Harry L. Rosenthal and John C. Little, Jr., of counsel), for respondent. I. The gun holster was properly received in evidence. (People v. Bonier, 189 N.Y. 108;

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People v. Neufeld, 165 N.Y. 43; Wilson v. State, 161 Md. 1; People v. Radovich, 122 Cal.App. 176; People v. Del Vermo, 192 N.Y. 470.)II. The comments of the District Attorney in summation were not unduly prejudicial. (Ruloff v. People, 45 N.Y. 213; People v. Priori, 164 N.Y. 459; Williams v. Brooklyn Elevated R. R. Co., 126 N.Y. 96; People v. Watson, 216 N.Y. 565.) III. No error was committed by the prosecution reference to appellant's changes in religion. IV. There was ample evidence to warrant the submission to the jury of the question as to whether deceased was killed in Monroe County, and to sustain a finding to that effect. (Commonwealth v. Costley, 118 Mass. 1; Commonwealth v. Knowlton, 265 Mass. 382; Hawkins v. State, 60 Neb. 380; People v. Kastel, 221 A.D. 315.)

LOUGHRAN, Ch. J.

On May 19, 1949, a Grand Jury presented in the Supreme Court of this State an indictment in this text:

'THE GRAND JURY OF THE COUNTY OF MONROE, by this indictment, accuse the defendant, George Hetenyi, of the crime of Murder in the First Degree, in violation of Section 1044, subdivision 1, of the Penal Law of the State of New York, committed as follows:

'The defendant, on or about April 22, 1949, in the County of Monroe, New York, wilfully, feloniously and from a deliberate and premeditated design to effect the death of Jean Gareis Hetenyi, killed the said Jean Gareis Hetenyi by shooting her twice in the body with a firearm, thereby inflicting injuries which resulted in and caused her death.'

Jean Gareis Hetenyi was the wife of the defendant. Her bullet-pierced dead body was found in the Genesee River at a point within the county of Monroe on April 23, 1949.

The defendant has been twice tried upon the above indictment. Both trials were held in the County Court of Monroe County. On the first trial, the defendant was found guilty of murder in the second degree and was sentenced to imprisonment for an indeterminate period of time the minimum of which was to be not less than fifty years and the maximum of which was to be for his natural life (see Penal Law, § § 1046-1048). The defendant challenged that judgment by an appeal to the Appellate Division, because the trial court did not submit to the jury the

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question whether there was sufficient evidence of the place of the crime as alleged in the indictment, i.e., Monroe County, New York. Indeed the trial court in respect of that question said to the jury: 'The finding of the body of the deceased, in the condition in which it was found within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe'. It was impossible, of course, to sustain that ruling. Hence the Appellate Division reversed the first conviction of the defendant (277 A.D. 310, 317) and, when the People brought that reversal to us for review, we affirmed the Appellate Division (301 N.Y. 757; see Code Crim. Pro., § § 252, 355, and People v. Hillman, 246 N.Y. 467, 473).

The second trial resulted in a judgment convicting the defendant of murder in the first degree and accordingly he was sentenced to the punishment of death. (See Penal Law, § § 1044-1045.) From that judgment of conviction, he then appealed directly to this court (see Code Crim. Pro., § § 517-520).

On the second trial, the question in respect of the alleged place of the crime was submitted by the trial court to the jury in this manner:

'You will recall, ladies and gentlemen, that during the course of this trial a great deal has been said and much stress has been laid upon the question of the place where this killing occurred, that is, the venue or locus of the crime. I further charge you that, under this indictment, this defendant cannot be convicted of the crime charged or of any of the degrees of homicide unless you find this killing took place in Monroe County. This is a question of fact that must be determined by the jury.

'However, the standard of proof that is required under our law by which you are to determine this fact is distinctly different from the standard of proof required in determining the fact that the defendant did the killing. This distinction, ladies and gentlemen, is of great importance.

'You must find that the defendant killed the deceased beyond a reasonable doubt * * *.

'However, as to the place where the killing occurred, that is the locus or venue of the crime, the proof of that fact does not require proof beyond a reasonable doubt. The venue of the crime is not a part of the crime itself and need not be proven

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beyond a reasonable doubt. In the absence of direct proof as to the venue, or the place where the killing occurred, that question may be determined by circumstantial evidence from all the relevant evidence.

'In this case there appears to be no direct evidence as to where the shooting actually took place, so you must rely upon circumstantial evidence in determining that fact; and, again, you are permitted to draw inferences from all the facts and circumstances in the case. * * *

'The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred. If, from the facts in evidence, the only rational conclusion that can be drawn is that the crime was committed in the county alleged, the proof is sufficient.'

When it reversed the judgment entered on the first trial, the Appellate Division said: 'The locus of the crime is not a part of the crime itself, and, as we view it, need not be proved beyond a reasonable doubt.' In the same opinion, the Appellate Division also quoted with approval the rule expressed in American Jurisprudence (Vol. 20, Evidence, § 1220) in this way: 'The proof is sufficient if, from all the facts and circumstances introduced in evidence, venue may be fairly and reasonably inferred.' (277 App. Div., p. 315.) The rules regulating proof of venue in criminal cases as so laid down by the Appellate Division were on the second trial herein adopted by the Trial Judge as appears by the words we have already quoted from the charge which he delivered to the...

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