People v. Colantone

• Decision Date: 08 June 1926
• Citation: 243 N.Y. 134,152 N.E. 700
• Parties: PEOPLE v. COLANTONE.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 134

152 N.E. 700

PEOPLE

v.COLANTONE.

Court of Appeals of New York.

June 8, 1926.

Pasquale Colantone was convicted in the county court of murder in the second degree. Judgment of conviction was reversed and new trial ordered by the Appellate Division of the Supreme Court for the Second Department as matter of law only (214 App. Div. 822, 210 N. Y. S. 901), and the People appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Albert C. Fach, Dist. Atty., of Stapleton (Lester L. Callan, of New York City, of counsel), for the People.

Henry Klauber and Arthur H. Cameron, both of St. George, L. I., for respondent.

CRANE, J.

On October 5, 1923, in the county court of Richmond county, defendant was convicted of murder in the second degree. On appeal the Appellate Division affirmed the facts and reversed upon a question of law only, two of the justices dissenting. The people come here insisting that the Appellate Division was wrong in its law, and that we should reinstate the judgment of conviction. The point of law relates to evidence of the defendant's reputation, which was excluded.

[1] This court has frequently stated that evidence of good character is a matter of substance, not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt, even when the evidence against the defendant may be very convincing. What weight shall be given to it is a question for the jury. Cancemi v. People, 16 N. Y. 501;Remsen v. People, 43 N. Y. 6;People v. Conrow, 200 N. Y. 356, 93 N. E. 943.

That the defendant in this case was guilty of either murder or manslaughter seems to have been proved beyond a reasonable doubt. After a quarrel upon the street in the early hours of the morning over a cigarette, the defendant rushed to his house, got a pistol, came back, shot and killed one August Santora. There was evidence from which the jury might have found premeditation and deliberation and an intent to kill, or, if they believed the defendant, the intent to kill as an element of crime would have been lacking. The defendant claims to have been struck by Santora and chased into his house. He came out again on invitation to fight. The pistol which he took he did not know to be loaded, and did not intend to kill. However incredible his story may be, the elements which go to make up murder or manslaughter were for the determination of the jury.

[4] The defendant is an Italian, about 29 years of age, and at the time of the trial had been in this country about 13 years. He enlisted and served in the late war with the Ninth Infantry, and was wounded at Chateau Thierry, and later in the Argonne Forest. He was made a citizen while in the army. On account of his wounds, he took up vocational training at a school located at Twenty-Third street and Lexington avenue, New York City, and was there until this shooting took place. The defendant was a married man with two children.

After this evidence had been introduced, together with the defendant's story of the shooting, an instructor and attendants at the vocational school were called. They knew the defendant and his associates of fifty or more at the school, and his reputation among these people. They had heard it discussed. A member of Company ‘L’ of the Ninth Infantry, who had served with the defendant in the army, was also called. He knew the defendant's reputation in the army and among his associates here and across the water. A member of the defendant's post, a post for disabled men, consisting of 250 men, was also called to state what he knew of the defendant's reputation among these associates. All this testimony was excluded on the ground that the witnesses did not know the defendant's reputation in the community where he resided. For this reason the Appellate Division reversed the judgment and granted a new trial. The district attorney claims with some support in the authorities that the rule applied by the trial judge was right, and that reputation of a defendant's good character is confined to what the witnesses know of that reputation in the community where he resides. We think that rule too narrow as applicable to this case. Such is the general rule, and was so stated by Judge Bartlett in the opinion of this court in People v. Van Gaasbeck, 189 N. Y. 408, 418,82 N. E. 718, 721 (22 L. R. A. [N. S.] 650,12 Ann. Cas. 745):

‘While the reputation which is receivable in evidence on the question of character must be confined to the place of residence of the person whose character is under consideration, or the neighborhood of such residence, and the time when such reputation existed must not be too remote, we think,’ etc.

The question was not squarely before the court in that case as to whether reputation in any other place than the place of residence could be given under proper circumstances. The question apparently had come up in Thomas v. People, 67 N. Y. 218, where the reputation of a prisoner in the state's prison and...