People v. Constantino

• Decision Date: 04 May 1897
• Citation: 47 N.E. 37,153 N.Y. 24
• Parties: PEOPLE v. CONSTANTINO.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 24

47 N.E. 37

PEOPLE

v.CONSTANTINO.

Court of Appeals of New York.

May 4, 1897.

Appeal from supreme court, trial term.

Guiseppe Constantino was convicted of murder in the first degree. From the judgment and an order denying a motion for a new trial, he appeals. Affirmed.

Charles A. Miller and James W. Rayhill, for appellant.

George S. Klock, Dist. Atty., for the People.

MARTIN, J.

The defendant was indicted for the crime of murder in the first degree. The indictment contained two counts. In the first it was charged that the defendant on the 10th day of January, 1896, at the city of Utica, N. Y., shot and killed one Pietro Domenicho Galiotti, with a deliberate and premeditated design to effect his death. In the second the same offense was charged as having been committed by the defendant willfully, wrongfully, unlawfully, feloniously, and with malice aforethought. The defendant and decedent were both Italians. As the former was examined on the trial through the aid of an interpreter, presumably he neither understood nor spoke the English language, although he had been in this country six or seven years. He had resided in Utica a little more than a month at the time of the homicide. During that time he had boarded at No. 1 Montgomery street, with a number of other Italians, among whom were Carlo Veschi and Pasquale Gaetano. Veschi occupied the same room with the defendant, and a portion of the time the same bed. The decedent was a married man residing in the same city, was a carpenter, and had been in this country only about eight months. Before coming here, he had served nearly 3 1/2 years in the Italian army. He resided with Pietro Saro, whose daughter he married. At about 10 o'clock on the morning of January 10, 1896, the defendant visited a saloon kept by De Luna & Seca at 545 Bleecker street in the city of Utica, where he met Veschi and others of his countrymen, among whom were the decedent and his father-in-law, who reached the saloon at about half-past 1 o'clock. They immediately went to the front room on the second floor of the building occupied as a saloon. After the arrival of the decedent, a portion of the people in the rear room on the second floor, among whom was Veschi, went into the front room and commenced playing cards for beer. In the game played the leader on the winning side was called a ‘padrone,’ and he might drink all the beer at stake himself, or give it to whomsoever he pleased. The defendant was not of the number who passed to the front room from the rear, although he was there at the time. During the game a dispute arose between the decedent and Veschi, either over the game, or in regard to the beer. When it commenced the defendant was still in the back room, but he soon came into the front room. So far as the record shows, the decedent and Veschi were the only persons who were engaged in the dispute or affray that followed. During their contention, Veschi's vest was torn. The proof tended to show quite clearly that, when the defendant came into the room where the decedent and Veschi were, he passed into a corner, placed his right hand on the hip pocket of his trousers, where he had a revolver, and said, ‘Keep away from me.’ This he denied. There was no evidence tending to show that any person attacked or sought in any way to injure him at that time, or that he was threatened, or, indeed, that he was at all involved in the dispute between the parties. The contention between the decedent and Veschi attracted the attention of the proprietors of the saloon, who went to the room where it occurred, and removed Veschi to the lower part of the building. Soon after the defendant went to the room below. He testified that while passing down the stairs he saw Giovanni Mechi, who said to him, ‘You look out to-night;’ that he also saw Saro and Constanza, and that the decedent was talking to Constanza; that Constanza said to him, ‘Do you want a revolver,’ and the decedent answered, ‘I have a weapon from Italy here that will do just as well;’ he said ‘he had a weapon from his father-in-law; that he didn't want no revolver.’ While in the barroom below, the defendant, with others, drank each a glass of beer, except that one of the number took a cigar, but whether it was the defendant or one of the others does not clearly appear. While there, the subject of Veschi's torn vest was discussed, with some excitement upon the part of Veschi. Witnesses for the prosecution testified: That during this discussion the defendant said to Veschi: ‘Never you mind! To-night I will kill him myself. Never you mind! Somebody scratched your vest. I want to kill him myself to-night. You had better get done with the business. I will kill him myself to-night. Never mind about your vest getting torn! I am going to be in jail for you to-night. I am going to kill somebody.’ That when he made these statements he put his hand in his pocket, and, as some of the witnesses testified, pulled out his revolver. Thereupon De Luna, one of the proprietors of the saloon, turned the defendant, Veschi, and Gaetano into the street. In a short time the decedent, with a stranger, De Sando, Saro, and a number of others, came down stairs, and also passed into the street. The decedent turned to go towards his home in company with his father-in-law. At that time the defendant was standing on the sidewalk in front of De Luna's saloon near Veschi and De Sando. Veschi said to De Sando that it was not right to have his vest torn so, to which De Sando replied: ‘You go, and I will speak for you. Go on. Never mind that! What are you doing there? You had better go home. Your wife is dead, and your child is going in the house of refuge, or in the orphan asylum.’ Thereupon the defendant went from the sidewalk to the middle of the street, and commenced firing his revolver. De Sando said to him, ‘Don't you fire, because you will be at a loss.’ Defendant then fired his revolver twice at De Sando while he was on the sidewalk. He next fired at the decedent's father-in-law, who was on his way home, or standing a little below the store next to the saloon. He fired three times right along; then stopped a couple of minutes, and commenced to shoot again. Some of the testimony was to the effect that he shot at a group of people congregated on the sidewalk. After the defendant began firing his revolver, the decedent went into the hallway of Barone's store and removed his coat. While there, the defendant fired twice at the doorway, inside of which the decedent was standing. The decedent then came out of the hall, and started towards the defendant with his hands up. The manner in which is hands were held was a subject upon which evidence was given. That by the prosecution was to the effect that they were held in a manner to indicate to a person of his nationality that he was unarmed, while the defendant's evidencetended to show that they were held in a way which indicated that his purpose was to attack him. The latter testified that the decedent, as he approached, had a stiletto in his sleeve, the hilt or handle of which was in his hand. There was no other evidence to that effect, while there was a great amount which tended to show quite conclusively that he had no weapon. There was also evidence tending to show that as the decedent approached the defendant the latter said. ‘Get away from me [or, ‘Keep away from me’], or else I will fire,' and that he at once fired, when the decedent was but a few feet distant; that the decedent fell, and died almost immediately. After the homicide, two bullets were found in the pilasters at the side of the hall door of the building occupied by Barone, and near the place where the decedent removed his coat. These bullets penetrated the wood about four or five feet above the doorsill. A bullet also passed through the window of the store, through a drum, into and through, or nearly through, three papers of tobacco which were upon the shelves. After the defendant shot the decedent, the former at once went to the house where he boarded, which was but a short distance from the place where this affray occurred. Soon after an officer went to the house, found him standing at the head of the stairs, searched him, found no revolver upon his person, arrested him, and took him and Veschi, who had also been arrested, to the police station. After leaving them at the station, the officers returned to the house where the defendant boarded, and began to search. They found the revolver in a peach basket near the point where the defendant was standing when he was arrested. It was partially covered by a piece of carpet. The officers also discovered several empty shells which were scattered about the room near the basket. The revolver had six chambers; was self-cocking and a self-ejector. It was 32 caliber, and the shells found fitted it. The prosecution proved that the ball shot by the defendant entered the brain of the decedent and caused his death.

On the trial the defendant was sworn as a witness in his own behalf. He denied that he put his hand upon his pocket or his revolver during the dispute between the decedent and Veschi in the room over the saloon. He also denied making the threats which were testified to by other witnesses as having been made after he went down stairs. He testified that, after he came down stairs and went into the street, he saw the people there; was frightened; that he was firing upon the ground; that he saw a piece of firewood in De Sando's hand; that he waved his revolver and fired five times; that, when he began to fire, De Sando went inside, and afterwards others were walking up and down, and he fired three or four times on the ground; that then the decedent came towards him and said, ‘To-night I am going to kill you,’ to which he replied, ‘I am firing on the ground, and, if you come towards me any further, I am firing towards you.’ He also testified that the signs the decedent made when he...