People v. Caruso
| Decision Date | 20 November 1928 |
| Citation | 164 N.E. 106,249 N.Y. 302 |
| Parties | PEOPLE v. CARUSO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Francesco Caruso was convicted of first degree manslaughter, and, from a judgment of the Appellate Division affirming the conviction (224 App. Div. 766, 230 N. Y. S. 889), he appeals.
Affirmed.Appeal from Supreme Court, Appellate Division, Second department.
Howard Hilton Spellman, Lewis A. Pinkussohn, Charles A. Schneider and Walter H. Pollak, all of New York City, for appellant.
Charles J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh, Asst. Dist. Atty., of Brooklyn, of counsel), for the People.
Francesco Caruso was indicted for murder in the first degree. His conviction was reversed by this court. 246 N. Y. 437, 159 N. E. 390. Our opinion stated briefly the facts of the killing. Caruso's child was sick; Dr. Pendola was in attendance; the child died; Caruso killed the doctor. ‘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.’
When the case was called for retrial, Caruso pleaded guilty of manslaughter in the first degree and was sentenced by the county judge to an indeterminate sentence, the minimum to be five years and the maximum to be ten years, and an additional five to ten years under section 1944 of the Penal Law (Consol. Laws, c. 40).
The appeal is here on the additional sentence. The defendant says it is illegal for two reasons: First, because section 1944 does not apply; second, because there must be a jury trial of the facts requiring the increased penalty.
Section 1944 reads:
‘Committing felony while armed.
‘If any person while in the act of committing a felony, or attempting to commit a felony, shall be armed with a pistol or any of the weapons or instruments specified in sections eighteen hundred and ninety-six, eighteen hundred and ninety-seven or eighteen hundred and ninety-seven-a, the punishment elsewhere prescribed in this law for the felony of which he is convicted shall be increased by imprisonment in state's prison for not less than five nor for more than ten years.’
The contention is that the words, ‘shall be armed with a pistol or any of the weapons,’ etc., means coming to the scene of the crime with the possession of such an instrument of violence intending to use it in the commission of crime; that the words were not meant to include the case where, in the heat of passion, a weapon is seized from a nearby closet or table-that is to say, ‘being armed’ implies or expresses the carrying of the weapon with intent to use it. The difficulty with this interpretation is that the statute speaks of the present not the past-‘any person while in the act of committing a felony, * * * shall be armed.’ This is something more than arming one's self with a weapon and then starting out to commit the felony. It covers such a case as this. Caruso when committing manslaughter was armed with a dangerous knife, an instrument specified in section 1897. Sections 1896, 1897, and 1897-a are only referred to in order to determine the kind of instruments or weapons the person must have to bring him within the provisions of section 1944.
A person who has in his hand a dangerous weapon with which he makes an assault is certainly armed with a dangerous weapon. 1 Words and Phrases Judicially Defined, p. 496; State v. Lynch, 88 Me. 195, 33 A. 978. We find the same words used with like meaning in defining ‘burglary in the first degree’ (section 402) and ‘robbery in the first degree’ (section 2124).
Having fixed the penalty for burglary and robbery committed when armed with a dangerous weapon, it may be said that the Legislature did not intend to increase the penalty by reason of this element. But that we think is just what the Legislature intended to do. People v. Paradiso, 248 N. Y. 123, 161 N. E. 443. Burglary and robbery in the first degree may be committed in four or five different ways, but, when committed while being armed with a dangerous weapon, the defendant must receive the additional punishment stated in section 1944. So, if in the act of committing any felony the defendant be armed with a dangerous weapon, his punishment is increased. Not the use necessarily, but the having of such an instrument, is the determining factor. Additional light is thrown upon the meaning of these words by section 2188 of the Penal Law relating to suspended sentences. No suspension is allowed ‘(c) if the person is convicted of a felony committed while armed with a weapon as provided in sect...
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