People v. Ferrara

• Decision Date: 15 November 1910
• Citation: 92 N.E. 1054,199 N.Y. 414
• Parties: PEOPLE v. FERRARA.
• Court: New York Court of Appeals Court of Appeals

199 N.Y. 414

92 N.E. 1054

PEOPLE

v.FERRARA.

Court of Appeals of New York.

Nov. 15, 1910.

Appeal from Supreme Court, Trial Term, Albany County.

Dominico Ferrara was convicted of murder in the first degree, and he appeals. Affirmed.

See, also, 92 N. E. 1095.

Peter A. Delaney for appellant.

Rollin B. Sanford, Dist. Atty., for the people.

CHASE, J.

On Saturday, October 2, 1909, George E. Phelps received six wounds in his head and neck, from the effects of which he died October 6, 1909. The wounds were not self-inflicted, nor were they the result of an accident. His death was the result of a homicidal act. It appears without contradiction or dispute that the person or persons who inflicted the wounds deliberately designed to effect his death. Vincenzo Leonardo and this defendant, Dominico Ferrara, were jointly indicted for the crime and charged with murder in the first degree. Both pleaded not guilty, and each demanded a separate trial. The jury found the defendant guilty, and it is from the judgment of conviction that this appeal is taken.

The homicide occurred in a building at the southwest corner of Broadway and Madison avenue in the city of Albany. Vincenzo Leonardo, Sr., father of the one jointly indicted with the defendant, was the tenant of the building, and the floors above the first floor were used for cheap lodgings. The first floor was occupied in part as a saloon. The barroom was in the northeast corner of the building, and to it there was an entrance from Broadway and also from Madison avenue. Adjoining the barroom on the west was a sitting room, and to such room there was an entrance from the barroom and also through a small room used as a kitchen, adjoining the sitting room, from Madison avenue. Immediately south of the barroom and the sitting room was a hall, to which was an entrance from Broadway. At the left of the entrance was an office partially partitioned from the remaining part of the hall. Back of the office was an entrance from the hall to the barroom, and opposite the entrance to the barroom, and south of it, was an entrance to a room which is south of the hall, and which is called a storeroom. In the hall, immediately west of the doors leading therefrom to the barroom and storeroom respectively, was a stairway on the south side of the hall leading to the second floor and the lodgings, and a narrow hall leading past the stairway to another stairway, and a rear entrance, which was reached by an alley leading from a street west of the building, which street is parallel with Broadway. The storeroom had formerly been used as a poolroom; but at the time of the homicide it was partially filled with furniture, boxes, rolls of carpet, and other things, and among the other things there was at the right of the entrance from the hall a wagon, and in the northwest corner of the room, and west of the wagon, was a pile of coal. Immediately to the left of the door as one entered from the hall, and behind such door as it was opened, was a desk about two feet wide and three feet long. Leading from a doorway at the west end of the storeroom and near the south side of it was another hall, from which was a door to the alley mentioned, and further to the west and opening from such hall was a rear room, extending west beyond the other part of the building and to the street referred to as paralleling Broadway. From the storeroom double doors lead into Broadway, but at the time of the homicide one of the doors was closed and fastened and the other could not be opened from the outside, because the knob with which to turn the bolt fastening it had been broken off. It could be opened from the inside.

A short time before the homicide, Leonardo, Jr. (hereinafter referred to as Leonardo), obtained a saloon license for the rooms so used as a saloon. The defendant resided with his brother at the corner of Broadway and Herkimer streets in said city. The place where he resided is two short blocks south of the Leonardo building. The brothers occupied a three-story building also used as a cheap lodging house, except that a portion of the first floor was occupied by them as a fruit store and another portion thereof as a kitchen and living room. The rent of the Leonardo building was payable on the first of each month. It was not paid on Friday, October 1st. The price of lodgings in the Ferrara building was 10 cents. The defendant's brother divided the amount received with the defendant from time to time. The brother testified that if the defendant had any money it was very little.

On Saturday morning Leonardo told his bartender to tell a man whom they saw on Broadway to send some one to collect his rent. He told the man as directed. The man replied that he would send some one in the afternoon. This was communicated to Leonardo. Phelps went to Leonardo's saloon to collect the rent before 2:30 p. m. Saturday, October 2d. A few minutes thereafter, and, as nearly as can be told, at 2:30 p. m., he was seen to come from said storeroom, through the hall and barroom, and pass into the street. He was covered with blood, and blood was streaming from one of his temples. Soon thereafter he was taken to the hospital, where he died a few days later. The autopsy disclosed the wounds mentioned, which the surgeon described as ‘stab’ and ‘knife’ wounds. Two of the wounds were more severe than the others, one of which was back of the right shoulder, extending to and against the spinal column; the other was in the right temple, and it was about one inch, or an inch and a quarter, in length and penetrated the skull and also penetrated and lacerated the brain. There was a black and blue spot covering the left eye and the region about the eye, and to a lesser extent the right lower eyelid.

The theory of the prosecution is that Leonardo and the defendant were in need of money, and that at some time prior to the commission of the crime they planned to take the life of some American in the locality where they lived, for the purpose of obtaining money, and subsequently, with that end in view, word was sent by Leonardo to the landlord of the premises occupied by him and his father to send some one there for his rent; that, when it was known that he would be there Saturday afternoon, the defendant in some way was made aware of the arrangement; that Phelps was sent for the rent and was taken in to the unused storeroom where Leonardo and the defendant, who must have preceded Phelps into the room and temporarily concealed themselves therein, made the assault upon him that resulted in his death.

The defense consists of an unqualified denial. No one was produced on the trial who testified to seeing the assault. The only direct evidence connecting the defendant with the assault was given by one Bernabic, a detective, to whom, he testifies, the defendant disclosed to some extent his connection with the crime.

Bernabic is an Austrian who speaks several languages, including Italian, which he speaks indifferently. He has been in this country fourteen years, and is an American citizen. For six years prior to the trial he had been employed by a private detective corporation, and actually engaged during most of that time in behalf of the New York Central & Hudson River Railroad Company. He testified that on December 2d, while working for said corporation in behalf of the city of New York, he was ordered by the president of the corporation to go at once to Albany; that he did so that night, and arrived in Albany in the morning and went to the office of the New York Central police department; that he there saw the president of the detective corporation and talked with him, and was told what he was there for. He testified, among other things, that he was hired to go to jail and get evidence in this case against Dominico Ferrara; that he was not told the name of Phelps or of any other person at all; and that he was not told that a man had been stabbed or killed in Broadway; but that he was told that two Italians were locked up for murder. Soon thereafter he was taken by an officer as a common prisoner and subsequently locked in the county jail, where he remained for 19 days. He became acquainted with the defendant and was asked by him what he was in jail for, and he told him that he came down from Troy that morning, and while he was getting something to eat he was arrested and searched, and that the officer found a revolver on him. He testified that the defendant and other prisoners said that he must be held on suspicion of a Green Island murder. He testified that they talked every day, but nothing was said about this case for four or five days. He testified: That the defendant said in substance that Leonardo got a pick from his brother-in-law about a month before the crime and dug a hole where the man murdered was supposed to be put. That subsequently and on the same day Leonardo's lawyer came to talk with him, and Leonardo was taken outside of the hall at the jail, and defendant said to him (Bernabic): ‘Look over here, Mike. Here is Leonardo, and he swear he say this is the man. He is a ‘squealer,’ he says. And he say, ‘If I ever get out of this trouble any time I won't have nothing to do with these Sicilians any more.’ I say, ‘Why?’ ‘Well,’ he say, ‘the Sicilians are no good; they are squealers; if they do anything wrong like this, and there is anybody else with him in company they squeal on everybody;’ and he says, ‘A Calabrian is not that way; if they do anything like that, one man what get caught,’ he says, ‘he puts the whole blame on himself and he won't tell on the rest of the bunch at all.’' That on another day the defendant talked with him about his (witness) case, and the defendant asked him if he belonged to any organization in New York that would help him and said that he belonged to an organization. That they used the name of ‘Famel Murtabano’; that it was what the people outside called ‘black hand,’ and the witness told the defendant...