Di Carlo v. United States, 192

Citation6 F.2d 364
Decision Date09 March 1925
Docket Number199.,No. 192,192
PartiesDI CARLO v. UNITED STATES. RUFFINO v. SAME.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Louis L. Thrasher and John S. Leonard, both of Jamestown, N. Y., for plaintiff in error Di Carlo.

Ernest W. McIntyre, of Buffalo, N. Y., for plaintiff in error Ruffino.

William J. Donovan, of Buffalo, N. Y., for the United States.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge.

The defendants, with others, were indicted under two indictments, one for obstructing justice and intimidating a witness (section 135 of the Criminal Code Comp. St. § 10305), and the other for conspiracy to intimidate and to injure a person who had testified as a witness (section 136 of the Criminal Code Comp. St. § 10306). Each indictment had two counts, and the two were consolidated and tried as one. Di Carlo was convicted on both indictments; Ruffino was acquitted on the first indictment and convicted on the second. Each took out a separate writ. Since no question is raised of the sufficiency of the proof, it is necessary to set out only the outline of the charge against them.

One Pattitucci was a morphine addict, who had bought his supplies from Di Carlo, and not only used them himself, but dispensed them to others. His restaurant was eventually raided, and he was arrested with others, and convicted in the District Court for the Western District of New York, and sentenced to two years' imprisonment, which he never served. By arrangement with the United States attorney he later became the principal witness before the grand jury in securing an indictment for the sale of morphine against Di Carlo and one Giallelli, another defendant in the indictments at bar, who was convicted, but did not take out a writ. The indictment of Di Carlo and Giallelli for selling morphine had been set for trial, and Pattitucci had been subpœnaed as a witness.

On the night of January 1, 1924, Pattitucci, who was in company with his leman, May Gilmore, was attacked on the streets of Buffalo by two armed men, one of whom shot him in the chin. He ran from them and escaped further injury, finally reaching a hospital, where he was cared for. His assailants had stepped out of a motor car, which had been following him, and which contained two other men. Pattitucci identified his assailants as Di Carlo and Giallelli, and the two men in the car as Ruffino and one Capodicaso, a defendant who was acquitted on both indictments.

The chief issue at the trial was as to the identification, all the defendants giving proof of an alibi. Di Carlo produced many witnesses to show that at or about the time of the assault he was at the New York Central Station, some distance from the scene, and Ruffino that he was at home. The points raised in the appeal concern the conduct of the trial, especially the admission of certain evidence by the learned trial judge. It will be convenient to take up the cases separately, remembering, however, that Ruffino raises the same objections as Di Carlo and one or two more besides.

Di Carlo's Case.

The first point arises from the admission of the evidence of a number of witnesses that Pattitucci had out of court declared that Di Carlo and Giallelli were his assailants on the night in question, and that Ruffino and Capodicaso were the men in the car. Two policemen, Bragg and Gorski, found Pattitucci within five minutes of the shooting, who told them that Di Carlo and Giallelli had shot him. He was taken to a hospital, and there gave their names to another officer, who arrested them. Ruffino was identified by the license number of his car. At the police station that same night Pattitucci identified all four of the men before a number of witnesses, who so swore. The admission of this evidence, if incompetent, would, we think, in so close a case be a serious error.

The argument of the prosecution in support of these declarations will scarcely stand. They suggest that, as they took place in the presence of the defendants, they were admissible. But this is true only in cases where the trial judge with some warrant believes that from the conduct of the defendant after hearing himself identified a reasonable inference of acquiescence may be inferred. Christie's Case, 1914 A. C. 545; State v. Claymonst, 96 N. J. Law, 1, 114 A. 155. It is a common error to suppose that everything said in the presence of a defendant is ipso facto admissible against him. While the question is a delicate one, dependent largely upon the discretion of the trial judge, nevertheless more must appear than that the defendant heard the statement. We think that the evidence of how the defendants met Pattitucci's accusation in the police station was plainly not enough to admit the identifications as admissions.

However, we believe that the evidence was competent on quite another ground. It is well settled that, when the veracity of a witness is subject to challenge because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose. The common sense of such a rule has been too strong for the formal objection that the evidence is hearsay, and indeed the objection is in substance not good anyway, since the witness is by hypothesis there to be cross-examined. This was allowed arguendo by Justice Story in Ellicott v. Pearl, 10 Pet. 412, 439, 9 L. Ed. 475, and is generally accepted law. People v. Katz, 209 N. Y. 311, 103 N. E. 305, Ann. Cas. 1915A, 501; State v. Flint, 60 Vt. 304, 316-318, 14 A. 178; Com. v. Jenkins, 10 Gray (Mass.) 485, 489 (semble); Hewitt v. Corey, 150 Mass. 445, 23 N. E. 223. Other cases may be found cited in Wigmore (2d Ed.) § 1129.

On the other hand, it is held in many jurisdictions, probably in the greater number of those which have decided the question, that earlier identifications off the stand are inadmissible, when the witness is not subject to challenge for bias. Without in any sense implying that we assent to it, and merely for purposes of argument, we may assume that this is good law. Do the facts at bar fall within it, or rather within the rule admitting declarations made before the existence of motive to fabricate? In the case of a neutral witness, the reason for admitting earlier identifications can only be because, if freshly made, they show that the subsequent identification under oath is not the result of suggestion and subconscious, though innocent, fabrication. The fresh recollection of the witness may be thought to be a valid check upon the contrivance of that pseudo memory to which we are all subject. We are far from saying that this is not an adequate ground for their admission, or that Professor Wigmore (section 1130) is not justified in supposing that they form a valid answer to attacks upon a neutral witness' testimony on the stand.

In the cases at bar Pattitucci had been convicted and sentenced, and it was plain that his testimony, if favorable, might be the means of commuting his sentence; such being the immemorial custom in such cases. He had therefore the strongest possible motive to identify upon the stand the defendants as his assailants. His declarations, of which the identifications in the police station were only a part, were therefore admissible under the established rule, if made under circumstances which precluded or made improbable the operation of the motive through which his testimony might be impeached.

His declaration to Bragg and Gorski, almost immediately after the event, was so near in time as to have the verity generally accorded to spontaneous declarations at the time, which are universally admitted. To exclude them one must suppose that, just after escaping, wounded, from a murderous attack, he should have seized upon the event as a means of escaping from his sentence, by imputing the assault to persons whom he had no reason to suppose the public authorities would be interested in coupling with the crime. To impute to him such a design seems to us fantastic.

His declaration to Thierfeldt in the hospital, though further removed in time, also falls within the same reasoning. He may indeed have already concocted a scheme to involve Di Carlo and Giallelli in a new crime, for the sake of insuring his own release, but it seems to us only theoretically possible. He had no reason to suppose that in so doing he would comply with any desire of the police.

The chief complaint is, however, not of these, but of the identifications in the police station, especially since these alone included Ruffino, whom he had theretofore been unable to identify at all. When Di Carlo and Giallelli were brought in that same night, after their arrest following Pattitucci's statements to the police, he at once identified them as the persons who had attacked him on the street, and Ruffino as one of the men in the motor. In the view we are taking, this evidence is admissible only if still antedating his motive to escape his sentence. Several hours had indeed elapsed, but during them Pattitucci had undergone an operation, an event which may fairly be taken as engrossing his attention for the moment. It is true that the police had made the arrests, and conceivably he might have already thought that his escape would be promoted if he helped along the conviction. But it seems to us a tenuous distinction in the case of Di Carlo between his original declaration and his repetition of it by the identification in the station house. Holding, as we do, that the first was admissible, we think it quite immaterial whether or not the second would have been such, had it stood alone.

This does not, however, apply to Ruffino, whom, as we have said, Pattitucci identified for the first time at the police station. As to him, and as to Di Carlo as well, if the identification be thought to add anything to the original declaration, we believe that it was a fair question, which in the end lay with the jury,...

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