People v. Falletto

• Decision Date: 03 October 1911
• Citation: 96 N.E. 355,202 N.Y. 494
• Parties: PEOPLE v. FALLETTO.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 494

96 N.E. 355

PEOPLE

v.FALLETTO.

Court of Appeals of New York.

Oct. 3, 1911.

Appeal from Supreme Court, Trial Term, Westchester County.

Pietro Falletto was convicted of murder in the first degree, and appeals. Affirmed.

The indictment contained two counts, by the first of which the defendant was charged with taking the life of Louis Levine ‘feloniously, willfully, maliciously, and unlawfully, and with a deliberate and premeditated design to effect’ his death. The second count charged the same crime, committed by the defendant while ‘feloniously and unlawfully engaged in the commission of a felony, to wit, the crime of grand larceny in the second degree.’William J. Fallon, for appellant.

Lee Parsons Davis, for the People.

VANN, J.

[1] The homicide which is the subject of this appeal occurred on the 13th of August, 1909, in the back part of a secondhand clothing store kept by Louis Levine, the deceased, in the village of Port Chester, county of Westchester. Mr. Levine was a feeble old man, 5 feet high, 89 years old, and weighing about 100 pounds. The defendant is 33 years of age, 5 feet 10 1/2 inches in height, and weighs about 180 pounds. The fatal wound was a straight cut across the throat, just above the Adam's apple, parallel to a line drawn from shoulder to shoulder, 3 1/2 inches long and 2 inches deep, severing the windpipe. The cut was under the beard, which was intact, although it was 5 or 6 inches long, and the neck of the deceased was short. A disinterested eyewitness testified that at about 3 o'clock in the afternoon of Friday, August 13, 1909, he saw the defendant holding Louis Levine down upon a lounge with his left hand, and cutting his throat with a knife held in his right hand. This story was corroborated by all the circumstances established by the testimony of sabstantially all the witnesses, except the defendant himself.

The defendant, as a witness in his own behalf, admitted that he inflicted the fatal wound, but claimed that he had a quarrel with the old man, who caught up a knife and assaulted him. He testified that he wrested the knife away, and in the heat of passion struck at the deceased with it, intending to slash his face from the bottom of the ear to the mouth, but Levine threw his head back and the knife entered his neck. This story is in conflict with all the facts conceded or proved beyond dispute.

There was no claim of justification or self-defense, but simply that the defendant was not guilty of murder, although it was conceded that he might be guilty of manslaughter. The deep wound in the short neck of the deceased could not have been inflicted by an attempt to slash the face, and as the long beard was not cut or disturbed it must have been held up before the knife could have been drawn straight across the throat. Moreover, the defendant was in urgent need of money, and the pocketbook habitually carried by the deceased was found in the outside pocket of the defendant's coat as he was forthwith arrested within a short distance of the store, while running away. He claimed that he had owned the pocketbook for several months, but two witnesses testified that it was the property of the deceased.

It is unnecessary to give a more detailed statement of the facts or to review the evidence, which strongly tended to show that the defendant threw a coat over the old man's head, pushed him down upon the lounge, robbed him, and then killed him in order to escape. The jury was justified in finding that he did the act, not only with deliberation and premeditation, but also while he was engaged in the commission of a felony, and hence that he was guilty under both counts of the indictment. We see no reason to disturb the verdict, so far as the merits are concerned.

[2] But one question of law requires discussion, and that is whether the dying declarations of the deceased were properly received in evidence, subject to the objection of the defendant. The preliminary evidence tended to show that the deceased could not speak until ‘his throat was sewn’ at the hospital, about 30 minutes after the wound was inflicted, and after the operation he could speak only in a whisper. Just before the operation, the surgeon told him that he was liable to die as the result of the injury, but he does not appear to have made any reply. In the evening the surgeon asked him how he felt, and he said, ‘I don't know what I have done in this world to deserve such an end.’ Some minutes later, when he showed signs of choking as the blood ran down his windpipe into his lungs, the doctor again asked him how he felt, and he replied: ‘I feel better; if I could only cough this up, I might feel better.’

On Saturday evening, about 30 hours after the injury, the surgeon asked him ‘if he wished to say his religious rites, if he wished to say vivi; that is the last rite of the Hebrew Church,’ of which he was a member. ‘I asked him if he wanted to say vivi, and I would send for Mr. Stein, the rabbi.’ It does not appear that the deceased assented to this, or requested that the rabbi should be sent for; but he came, and at once asked Mr. Levine, ‘Do you want to say vivi?’ The answer was, ‘Yes,’ and thereupon ‘they proceeded to say vivi. They went through the last rites of the Hebrew Church. * * * The last rites for the dying.’ Right after this the surgeon asked him if he had anything else to say in the presence of his family, who had assembled by his bedside, and he said: ‘Yes; I want my family to pay the following debts'-giving the nemes of his creditors. The surgeon further testified: ‘After we had stitched up the wound, he was able to make himself understood by speaking in a low whisper, because his windpipe was connected; but the blood was just the same, gradually going into his lungs and choking him by degrees, and from the lapse of blood he was actually getting weaker, and he was rapidly failing, sinking. On this Saturday night, when the rabbi was there, he had been in a comatose condition before that time. * * * He was sinking very rapidly, growing worse all the time, growing worse all this while from loss of blood, and the blood going into his lungs, and his heart was growing weaker. * * * There was no hope at all of his recovery.’

A daughter of the deceased testified that on Saturday evening about 8 o'clock a good many persons from the synagogue, as well as several members of her own family, had gathered about his bed . She ‘was present when Rabbi Stein said the last rites, called ‘vivi.’ * * * The last rites, they say that when they know they are going to die; they ask for it.' As soon as the vivi was said, the deceased told his family to pay all his debts, and the rabbi ‘put all the names down that he said he owed, and every one was correct.’

After the last service for the dying had been performed, and the deceased had given directions for the payment of his debts, he told his friends about his bedside how he was injured. The surgeon was asked to state what he said upon that subject, when the defendant's counsel objected, ‘upon the ground that the conditions precedent to giving a dying declaration have not been established.’ The objection was overruled and an exception taken . The surgeon answered: ‘He then said to his children (they were all standing around the bedside), ‘Did you hear what happened to me?’ They said: ‘No; what was it?’ He told them in Yiddish that an Italian came into his store, and asked him if he had any secondhand overcoats to sell, and he said he did, and showed him one, and that the Italian put the coat on him and looked it over, and then said, ‘That suits me,’ and...