People v. Cascone

• Decision Date: 12 June 1906
• Citation: 185 N.Y. 317,78 N.E. 287
• Parties: PEOPLE v. CASCONE.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 317

78 N.E. 287

PEOPLE

v.CASCONE.

Court of Appeals of New York.

June 12, 1906.

Appeal from Court of General Sessions, New York County.

Raffaele Cascone was convicted of murder in the first degree, and he appeals. Reversed.

Cullen, C. J., and Haight, J., dissenting.

James W. Osborne, for appellant.

Robert L. Taylor, for the People.

VANN, J.

The defendant and his brother, Dominico Cascone, were jointly indicted for the murder of Tirigi Sinischalchi on the 9th of June, 1903, at the borough of Manhattan,by inflicting a gunshot wound upon him, of which he died ten days later. The defendant was tried and convicted of murder in the first degree, but his brother fled and was never taken. At the time of the homicide the defendant was 37 years old, of large size and great strength, while his brother, aged 28, was small and weak. Two persons were shot at the same time and by the same person, Sinischalchi, for whose murder the defendant was tried, and Santanelli, who was killed outright on the same occasion, but his name does not appear in the indictment now before us. The homicides took place at about half past 7 in the evening of June 9, 1903, in the open street nearly in front of No. 112 Mulberry street in the city of New York. The sidewalk was thronged with people at the time, and there were some in the driveway. There had been ill feeling between Dominico Cascone and the two men who were killed for a longer or shorter period. When it began does not appear, and the first we learn of the relations of these men, beyond their mere acquaintance, is from one Cibelli, a relative of both Sinischalchi and Santanelli, who testified that on Decoration Day, May 30, 1903, ten days before the homicide, Dominico had an altercation with them, and one of them slapped him in the face. He was not injured, but felt the insult keenly, and, going to his brother with tears in his eyes, told him what had occurred. The defendant said: ‘Well, never mind, when they pass over here, if you don't kill them I will.’ Four or five days later, Marie Ruggieri, who lived with the defendant, but was not his wife, saw him, as she says, clean and load the gun with which the crime was subsequently committed, and put it away in the house where he lived, No. 112 Mulberry street. On the day before the homicide, as Marie Sinischalchi, a relative of one of the dead men and the lessor of the other, testified, the defendant spoke of the assault upon his brother, and said: ‘I got a nice two-barreled gun upstairs, and when they pass over here I will fix them.’ About an hour before the homicide, according to Marie Ruggieri, the defendant said to his brother, ‘In the evening we will shoot,’ or, as she put it in English when the interpreter expressed doubt as to her meaning: ‘You got to kill! You got to kill!’

At about half past 7 in the evening, as the two victims were walking together in the middle of the street, nearly opposite No. 112, according to the evidence of six witnesses called by the people, they were shot one right after the other by the defendant with a double-barreled shotgun. Santanelli fell dead, but Sinischalchi lingered for a few days, when he died in a hospital from blood poisoning caused by the wound. The gun was loaded with bullets or coarse shot, one or more of which entered at the angle of the jaw on the right side of the face, carried away part of the jaw, and, passing out at the mouth, perforated the tongue and lower lip. The physician who made the autopsy testified that the deceased must have been shot from behind, or as he was turning around. The eyewitnesses who thus testified were a brother of Santanelli, the Ruggieri woman, and four other Italian witnesses apparently disinterested, including a lad of 12 1/2 years. One of them, when asked to point out the person who did the shooting, did not touch the defendant, but another man. According to the theory of the prosecution, supported by some, but not all, of these witnesses, the defendant, after shooting, handed the gun to his brother Dominico, who fied with it into the hall of 112 Mulberry street, while the defendant fled diagonally across into the barroom of No. 109. Officer Powers, who was on hand promptly after hearing the shots, seeing the victims lying in the street, asked one Polino who shot them. Polino, who says he did not want to give the man's name, told the officer that the man who did the shooting ran into No. 112 with the gun. The officer at once searched the premises and found the gun on the third floor, with both barrels warm and an exploded cartridge shell in each. This was before the defendant was arrested. Two witnesses testified that they saw Dominico put the gun down where it was found by the officer and then disappear through the roof. He was never seen afterward, so far as the evidence discloses. Polino, who was called by the defense, swore that he heard two shots, only an instant apart, and, turning around, saw Dominico with the gun in his had running into the hallway of No. 112. The defendant was errested five or ten minutes after the homicide in the saloon at No. 109 Mulberry street, and not long afterward he admitted that he owned the gun, but on the trial he denied it, stating that he owned a gun somewhat like it. He was at once taken by the arresting officer to the Hudson Street Hospital and confronted with Sinischalchi, but what then transpired will be described hereafter.

On the other hand, 12 witnesses called by the defendant swore either that they saw Dominico do the shooting, or to facts from which the irresistible inference was that some one other than the defendant fired the shots. These witnesses were all Italians, but the most of them were apparently disinterested, and their version was as reasonable and as well supported by circumstances as that given by the witnesses for the people. They resided or had business in Mulberry street at the time of the homicide, and they all testified that the defendant was not the man who shot Sinischalchi. Moreover, 13 other witnesses, including the defendant, testified that he was somewhere else when the homicide took place, and 4 that, at the time Marie Ruggieri swore she heard the two brothers plan the murder on the afternoon of the homicide, the defendant was at No. 82 Bayard street. Twenty-five witnesses, all of the same nationality, testified to a state of facts which, if true, proved that the defendant did not do the shooting. The case was clearly for the jury and the evidence warranted them in finding the verdict they rendered. It was for them to settle the remarkable conflict between the witnesses, and no court can say on which side the truth really was. While there was a preponderance in numbers for the defendant, the actual weight of evidence, which depends so largely upon appearance and credibility, may have been with the people. There was evidence to support the verdict whether the jury found that the defendant committed the crime himself,or induced his brother to commit it, and aided him by furnishing a loaded gun, for in either event he was guilty of deliberate and premeditated murder. Upon whatever theory they proceeded there was a momentous question of veracity. They may have found that he fired the fatal shot himself, and hence the perplexing conflict in the evidence upon the question of identity makes it important to see that no injustice was done him at the trial, for in such a peculiar case a feather's weight may have turned the scales against him. The absence of controlling or even significant circumstances to guide the jury through the maze of contradiction and falsehood may require a new trial for errors which ordinarily could be disregarded with safety.

Kennelly, the arresting officer, took the defendant to the hospital and led him to the operating table upon which Sinischalchi was lying. He was conscious, but could not speak, owing to his wound, although he could communicate by motions and in writing. Kennelly asked him if he knew the man who shot him, and he nodded his head. He was then asked to write the man's name on a pad that was handed him, and he wrote the name of the defendant. The officer read the name in the presence of the defendant, who shrugged his shoulders, but said nothing. The paper, marked ‘Exhibit 6,’ was offered in evidence by the people, when the defendant objected to it as incompetent and irrelevant. The court overruled the objection, saying that the paper was not offered as a dying declaration, no foundation having been laid, but as a statement made in the presence of the defendant, and an exception was taken. The same evening the officer brought the defendant to the bedside of Sinischalchi and asked him, ‘Do you know this man?’ and he bowed his head as before. The officer then said, ‘Put his name on a piece of paper,’ and the deceased wrote ‘Raffaele Cascone.’ The officer ‘read out’ the name and the defendant shrugged his shoulders. This paper, marked ‘Exhibit 4,’ was read in evidence by the prosecution subject ot the same objection but no exception was taken. The officer, who did not understand Italian, was doubtful whether Sinischalchi comprehended what was said to him, so he called a young Italian named Thomas and through him attempted to ask in that language the question, ‘Why did he shoot you?’ and Sinischalchi in answer wrote something on a piece of paper handed him for the purpose. Thomas, though present in court, was not sworn. When the officer called the defendant's attention to what was written he shrugged his shoulders. This paper, marked ‘Exhibit 7,’ was read in evidence subject to objection and exception. Neither the officer nor the official interpreter could translate what was thus written, but when translated by one who understood the peculiar dialect it was said to mean ‘because of a quarrel with my brother.’

The next morning, by direction of Coroner Brown, the officer brought the defendant before Sinischalchi, when the...