People v. Ferraro

• Decision Date: 09 January 1900
• Citation: 161 N.Y. 365,55 N.E. 931
• Parties: PEOPLE v. FERRARO.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 365

55 N.E. 931

PEOPLE

v.FERRARO.

Court of Appeals of New York.

Jan. 9, 1900.

Appeal from supreme court, trial term, Kings county.

Antonio Ferraro was convicted of murder in the first degree, and appeals. Affirmed.

Martin, J., dissenting.

Hugo Hirsh, for appellant.

Hiram R. Steele, Dist. Atty., for the People.

VANN, J.

This appeal is from a judgment convicting the defendant of the crime of murder in the first degree, committed,as alleged, in the borough of Brooklyn on the 4th of September, 1898, by cutting the throat of Luciano Musacchio with a razor. Both the accused and the deceased were natives of Italy, but the former had been in this country for 17 years, and the latter for 12 or 13, prior to the homicide. They were well acquainted, and distantly related, but it does not appear that they had seen much of each other for some time prior to the occasion in question. On the afternoon of Sunday, September 4, 1897, Musacchio and three Italian friends were drinking beer in a little yard at the rear of a building known as ‘46 Front Street, Brooklyn.’ After a while the defendant and three of his friends, also Italians, came in, shook hands all around, and drank beer by themselves at another place in the same yard. The eight men were thus occupied for several hours, and the two groups apparently had little to say to each other. It does not appear how much beer was consumed by the defendant and his friends, but during the afternoon the deceased and his friends each drank about a pint, although, according to the evidence, no one of them was apparently under its influence. Shortly after the defendant came in, Blonda, one of the three who were drinking with the deceased, invited him to drink with them, but he answered, ‘No; we drink by ourselves, and you drink by yourselves.’ There was some conversation between the defendant and the deceased, but the witnesses differ in stating their recollection of it. Blonda testified that the defendant said to the deceased, ‘You give me a dollar, and you go all around saying you give me a dollar,’ and that the deceased replied, ‘I did not say anything about the dollar.’ The defendant then said, ‘Whenever I get a dollar, I will give it to you;’ and the deceased answered, ‘I do not want it.’ Thereupon the defendant took the deceased, who was much larger than himself, by the hand, and tried to pull him out of the yard; but he got away, and told him to let him go, saying, ‘An older man than you are, and a relation as you are, I will give you a slap,’ or ‘you deserve to be slapped.’ The defendant answered, ‘With reason, slap me ten times,’ and then turning to Diodati, one of those who were with the deceased, said, ‘I have always something to say with you.’ Diodati, in narrating the same conversation, says that the defendant spoke about a letter that he wrote to the deceased from Philadelphia while he was in prison, asking for a loan of five dollars, and said that the deceased had refused to let him have it, saying: ‘You have two brothers. Why don't they send it to you?’ The defendant then took the deceased by the wrist and tried to pull him away. Right afterwards he said to Diodati ‘You also talk, Diodati;’ and the deceased answered: ‘That man ain't doing anything. He is attending to his business. Did you come here to raise trouble?’ The defendant replied, ‘You have four eyes, and I have six eyes.’ On his cross-examination Diodati stated that the defendant threatened him (the witness) and said: ‘You are in the gang. You take some friends with you, don't you?’-and that the deceased said to the defendant that he had better go, or else he would put him out. After this conversation the witnesses agree substantially as to what occurred. Later in the afternoon the deceased and two of his friends (one having left before) started to leave the yard, went up the steps at the rear of the house, and passed through the hall to the front of the building. He was behind his two friends, and the defendant followed him, and when they reached the front steps was close to him. As they were about to descend the steps the defendant drew a razor from an inside pocket of his coat or vest, and, putting his left hand on the shoulder of the deceased, with the razor in his right hand, he cut his throat with a single stroke. Musacchio at once fell, saying, according to the statement of one of the witnesses, ‘Oh, my God! they killed me;’ and of another, ‘You kill me! What did you do that for?’-and died almost immediately. The defendant struck at him with the razor three times,-once, at least, after he was down. The ambulance surgeon, who promptly examined the body before it had been moved, found three cuts,-one over the mastoid process, which went down to the bone, but not in the neighborhood of ‘any vessels or structures sufficient to cause death.’ The second was a superficial cut on the neck, not at all serious, and the third, on the right side of the throat, severed the carotid artery and internal jugular vein, and in the opinion of the ambulance surgeon, corroborated by that of the coroner's physician, caused death from hemorrhage. The latter also stated that in his opinion these wounds could not have been caused by one stroke. The witness Diodati says the defendant chased him with the razor in his hand shortly after Musacchio fell. Mazzio, who kept the grocery at 46 Front street, did not see the defendant strike the deceased, but saw him standing two or three feet from the body, waving a razor very rapidly; and, as he started to come toward the witness, Mazzio told him not to come near him. Barroni, who sat on the bottom step talking with some boys, said that he heard tramping on the top step, and, looking up, saw ‘them stepping around, and I got up, and I saw Ferraro have one hand on his shoulder and cut him with the other hand.’ Very soon the defendant ran down Front street, followed by an excited crowd, some of whom threw stones at him. The arresting officer found him on Dock street, about 300 feet from Front; and in his right hand, which was covered with blood, he held a bloody razor, and would not give it up until compelled to. He was taken before Chief MacKellar at police headquarters, and, according to the recollection of two policemen who were present, the chief asked the defendant, ‘Why did you kill that man?’ and he answered, ‘Because he is no good.’ When asked, ‘What were you arrested the other time for, and what were you in jail the other time for?’ he said, in substance, that he worked for a boss in Philadelphia who would not pay him, and he assaulted him, and served 4 1/2 years in prison for it. According to the recollection of Chief MacKellar, the defendant, when asked, ‘What did you do that for?’ answered, ‘I no talk,’ and was then told that he need not talk if he did not wish to. The chief stated the conversation in relation to the assault in Philadelphia and the imprisonment therefor the same as the other officers. Other witnesses were sworn for the people, and further details given, but this is the substance of the testimony in chief for the prosecution.

The defense called no witness who gave a different version of the homicide or the circumstances surrounding it, except one who said that he was drinking with the group surrounding the deceased in the rear of 46 Front street, and that there was no trouble or quarrel of any kind in his presence. Several witnesses, who had known the defendant for some time, testified to strange acts and incoherent conversation on his part prior to the homicide. Oranges, who had known him but a month, testified that in January or February, 1898, he asked the defendant, when in jail, why he commited the murder, and the answer was, ‘They put me in here for a long time, and they won't pay me at all.’ Referring to the keeper of the prison, who was present, he said, ‘This man, he got good pay, but they won't pay me.’ When asked, in substance, why he expected any pay, as he was in jail for murder, he answered: ‘I didn't commit any murder. I don't know anything about it. Well, I don't know, it is better to me to put me in some fire, or put me out of here.’ The witness asked him, ‘What are you going to say on the day of the case?’ ‘Well,’ he said, ‘I haven't anything to say. I don't know anything.’ He was then told, ‘You will have to plead, and if you plead for manslaughter you may get out.’ ‘Oh, no,’ he replied, ‘it is better for me to go on fire, or they put me out, and I go for my business.’ When asked again, ‘What did do that murder for?’ he said: ‘Well, there is a towel on the table. You want to say this towel is not on the table. It is your fault. All the witnesses they bring in the court, but I don't know anything about murder.’ A brother of the defendant testified that in July, 1892, the defendant acted as if he did not know what he was talking about; that he said the company in Philadelphia gave his mother plenty of money while he was in jail, and that he wanted it from her, and told her not to give it to the other brother, but his mother replied, ‘I haven't any money.’ This witness, when asked to describe the actions of the defendant, said, ‘He was very crazy, saying that Humbert I. (meaning the king of Italy) had sold him to this country.’ On his way home from Philadelphia, after the expiration of his term in prison, the witness said he had to hold him to keep him from jumping from the train, and the family watched him for awhile to see that he did not run away. Finally they caused his arrest for assaulting his brother, and he was sentenced to imprisonment for 10 days. The witness was asked, ‘Did he talk intelligently to you?’ and the answer was, ‘Sometimes he used to, and other times he used to keep out of the way.’ He further testified that the condition of defendant's face had changed, and that when he came back from Philadelphia it was ‘very dark, funny looking. He didn't look as he used to. He had all changed.’ He also said...