People v. Caruso

• Decision Date: 22 November 1927
• Parties: PEOPLE v. CARUSO.
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 437

159 N.E. 390

PEOPLE

v.CARUSO.

Court of Appeals of New York.

Nov. 22, 1927.

Francesco Caruso was convicted on the verdict of a jury of murder in the first degree, and he appeals.

Reversed, and new trial ordered.

Appeal from Kings County Court.

Walter H. Pollak, Charles A. Schneider. Howard Hilton Spellman, Ruth I. Wilson and Lewis A. Pinkussohn, all of New York City, for appellant.

Charles J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh, of Brooklyn, of counsel), for the People.

ANDREWS, J.

This judgment must be reversed.

[1] In reviewing convictions for murder in the first degree, the Court of Appeals has broad powers. It is to see that justice is done both to the accused and to the state. If guilt is clear, errors or instances of unfair conduct by the prosecutor may sometimes be ignored. The greater the doubt of guilt, however, the more likely are errors to affect the substantial rights of the accused. The more likely are appeals to sympathy or passion or prejudice to influence the jury. It is our duty, not only to weigh the evidence, but to grant a new trial, if we believe justice requires such a course.

Francesco Caruso, an illiterate Italian, 35 years old, came to this country about 1911. He worked as a laborer, and in the early part of 1927 was living with his wife and six small children in an apartment in Brooklyn. On Friday, February 11th, one of these children, a boy of six, was ill with a sore throat. That day and the next he treated the boy with remedies bought at a drug store. The child grew worse, and at 10 o'clock of the night of the 12th he sent for a Dr. Pendola, who had been recommended to him, but with whom he was not acquainted.

What followed depends upon a statement made by Caruso and upon his testimony on the stand. Any proper inferences may be drawn therefrom. The belief that what he said was false, however, or any reasoning based upon his failure to call friendly witnesses, will not supply the want of affirmative testimony of the facts necessary to constitute the crime. Those facts, if they exist, must be inferred from his own admissions.

Some time between 10:30 and 11 in the evening Dr. Pendola arrived. The child had diptheria. Caruso was sent out to buy some antitoxin, and, when he returned, the doctor administered it. He then gave Caruso another prescription with instructions as to its use, and left promising to return in the morning.

Caruso watched the child all night, giving remedies every half hour. ‘About 4 o'clock in the morning,’ he testified, ‘my child was standing up to the bed, and asked me to, he he says, ‘Papa’ he said, ‘I am dying.’ I say that time, I said, ‘You don't die.’ I said, ‘I will help you every time.’ The same time that child he will be crazy-look like crazy, that time-don't want to stay any more inside. All I can do, I keep my child in my arms, and I held him in my arms from 4 o'clock until 8 o'clock in the morning. After 8 o'clock in the morning the poor child getting worse-the poor child in the morning he was'-(slight interruption in the testimony while the defendant apparently stops to overcome his emotion). ‘The poor child that time, and he was asking me, ‘Papa,’ he said, ‘I want to go and sleep.’ So I said, ‘All right, Giovie, I will put you in the sleep.’ I take my Giovie, and I put him in the bed, and he started to sleep, to wait until the doctor came, and the doctor he never came. I waited from 10 o'clock, the doctor he never came.'

Then, after trying in vain to get in touch with the doctor, he sent for an ambulance from a drug store.

‘When I go home I seen my child is got up to the bed that time, and he says to me, ‘Papa, I want to come with you.’ I take my child again up in my arms, and I make him look to the backyard to the window. He looked around the yard about a couple of minutes, and after, when he looked around, he says to me, ‘Papa, I want to go to sleep again.’ I said, ‘All right, Giovie, I will put you in the sleep.’ I put my child on the bed. About a few seconds my child is on the bed, my child says to me, he says, ‘Papa, I want to go to the toilet.’ I said, ‘All right, Giovie, I will take you to the toilet.’ So I was trying to pick up the child, and make him go to the toilet, when I held that child I felt that leg-that child started to shake up in my arms. My wife know about better than me-I cannot see good myself in the face, so she tell what kind of shakes he do, and she has told me, she says, ‘Listen, Frank, why, the child has died already.’ I said, ‘All right, you don't cry. No harm, because you make the child scared.’ That time I go right away and put the child on the bed. When I put the child, before I put my hand to the pillow, my child said to me, ‘Good-bye, Papa, I am going already.’ So that time I put my hands to my head-I said, ‘That child is dead. I don't know what I am going to do myself now.’ That time I never said nothing, because I said, ‘Jesus, my child is dead now. Nobody will get their hands on my child.’'

About 12 o'clock Dr. Pendola arrived. The child had been dead for some time. He was told, and then Caruso says the doctor laughed, and he ‘lost his head.’ This seems incredible. Yet Caruso apparently believed it, for his testimony on the stand is a repetition of the same charge made in his statement that same night, before it is likely that a man of Caruso's mentality would be preparing a false defense. The probability is there was, from one cause or another, some twitching of the facial muscles that might be mistaken for a smile.

Besides the delay of the doctor and the smile was another circumstance, which, if true, would exasperate Caruso. He says, and again this appears in the statement as well as in his testimony on the trial, that, when he was buying the antitoxin, the druggist told him that the dose was too large for a child of the age of his son. This he told the doctor. The latter was indignant, and paid no heed to the warning. The druggist denied any such conversation, and apparently the dose was proper. But it seems probable that something occurred that left on Caruso's mind the impression that the death of his child was caused by malpractice. At least, immediately after the death, he told an ambulance surgeon that Dr. Pendola had killed his child by an injection, and also complained of his delay in not coming that morning. And within a short time he made the same charge to others.

Then followed some talk. Caruso accused the doctor of killing his child. The doctor denied it. Caruso attacked him in anger, choked him until he fell to the floor, then went to a closet ten or twelve feet away, took a knife, and stabbed him twice in the throat, so killing him. Caruso then took his family to the janitor's apartment downstairs, and himself went to his brother's house on Staten Island, where he was arrested that night. He made no attempt whatever to conceal the facts of the homicide, and his departure cannot fairly be viewed as a flight, indicating consciousness of guilt.

[2] The case for the people was simple. Formal identification of the dead body was required. That Caruso committed a homicide, neither excusable nor justifiable, was...