People v. Fiorentino

• Decision Date: 18 January 1910
• Citation: 91 N.E. 195,197 N.Y. 560
• Parties: PEOPLE v. FIORENTINO.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 560

91 N.E. 195

PEOPLE

v.FIORENTINO.

Court of Appeals of New York.

Jan. 18, 1910.

Cullen, C. J., and Chase and Gray, JJ., dissenting.

Appeal from Supreme Court, Trial Term, New York County.

Domenico Fiorentino was convicted of murder in the first degree, and he appeals. Reversed.

John Palmieri, for appellant.

William Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for the People.

VANN, J.

The parties to the homicide which is the subject of this review were two Italians, Natali Mauro, the deceased, a large, powerful, well-built man, and Domenico Fiorentino, the defendant, whose size or strength does not appear. The place was the street in front of a saloon kept by one Michael Pelotti on the northeast corner of 214th street and the White Plains road, in the borough of The Bronx, and the time was the 16th of October, 1908, at about 7:30 in the evening.

The defendant is a laborer, 32 years of age, who, three months before the homicide while boarding with the deceased had been accused by him of improper relations with his wife, which he denied, and so far as appears the charge was wholly without foundation. Mauro told the defendant to leave his house, saying: ‘You want to leave now, but some day we will meet again. In my house I would not do anything to you, because I don't like to disturb my own house. The first time I will meet you I will cut you in pieces. The smallest piece of your body will be the size of your ear.’ The defendant left, after paying Mauro what he owed him, in order, as he testified, not ‘to have any trouble with that man.’ Before this Mauro had recently whipped one of his boarders, and on the same day that he told the defendant to leave he turned another boarder out of doors, saying that, if he remained any longer, ‘I will do to you the same thing I am going to do to the other.’ Three weeks before the tragedy one Michel told the defendant that Mauro had said to him, and such was shown to be the fact, that he would kill the defendant on sight. Up to this time, as the defendant swore, he had never carried a revolver, although he had one that a friend had given him about a year before. When he heard of the last threat to take his life made by Mauro, he took the revolver from the valise where he kept it, loaded as it was when presented to him, and thereafter carried it to defend himself.

The parties met for the first time after the last threat on the evening of October 16th at Pelotti's saloon, where the defendant was in the habit of going to see a free show, while Mauro had never been there before. Why he came on this occasion, or whether he knew it was a place frequented by the defendant, does not appear. The defendant was seated at a table drinking and chatting with several friends, when Mauro entered and either bought a drink for himself, as some of the witnesses say, or drank with the defendant upon his invitation to all present, as others said. The defendant and one of the witnesses for the people testified that Mauro sat at the table and drank with him, while two observers denied it. At all events, after the drink Mauro, without any provocation from the defendant, approached him from behind and said, ‘You are the fellow I am looking for,’ and at once assaulted him in the back, and struck him three or four times with his fist, as most of the witnesses thought, for they saw no weapon, but with some sharp instrument in his hand, as the defendant insisted, stating that he saw it as he turned around. The counsel for the people, with his usual fairness, says in his brief: ‘There is no doubt that the deceased was the aggressor, and so far as appears the defendant did nothing to provoke him.’ There is no evidence that prior to the assault upon him the defendant had ever thought of injuring Mauro. According to the version of most of the witnesses the defendant, as he was assaulted, turned around, backed off, drew a revolver, and snapped it three times, but it did not go off, and if did not appear to have been pointed at any one. Probably the cartridges were stale, as the piece had been loaded so long. The defendant swore that Mauro chased him out of the saloon, but this version did not have the support of any other witness. According to the weight of evidence, Mauro went out first, and the defendant, in quick pursuit, while Mauro was still running away, fired at him once and missed and then fired a second time, when Mauro, hit in the back of the neck, fell in his tracks and died in a short time. The claim of self-defense, upon which the counsel for the defendant spent much time during the trial, had little support aside from the testimony of the defendant himself. The weight of evidence was against it, for it tended to show that Mauro was running away, and that the defendant was running after him when he fired the fatal shot.

The defendant did not approach the fallen man, but threw away his revolver and fled, and, when arrested soon after, he said: ‘Me no afraid electric chair.’ The revolver was promptly found with two empty cartridges and three loaded shells in the chambers. Not at once, but in a short time, and in answer to questions from the arresting officer, the defendant said his coat was cut by a knife or razor that he saw in the hands of Mauro when he made the assault upon him. There is no doubt that the coat looks as if it had been cut three times in the back and twice on the left sleeve. It was produced before us and we saw it. The counsel for the people admits in his brief that it may have been cut, but he insists that it may have been cut before the meeting in the saloon, or even after the arrest. He founds this statement on the evidence of the officer who ‘prepared the case,’ as he had ‘prepared a good many homicide cases' before, that the body of the defendant was not cut, which seems to be admitted, and that the lining of the coat was not cut, which does not appear to be admitted, as to at least two of the cuts.

From the beginning to the end the affair took but one or two minutes. While there was time for that deliberation and premeditation which stamp homicide as murder in the first degree, it by no means follows that the defendant, with the hot blood of Southern Europe coursing through his veins, under the heat of an unprovoked assault and the terror of recent threats by the deceased to take his life, did in fact act with deliberation and premediation. He had time to cool off, but did he cool off, meditate, and deliberate? Was his mind in such a condition that he could deliberate within the meaning of the statute? The careful consideration of this question apparently was all that stood beween him and death. He may have committed a serious crime, but whether he committed the most serious crime known to the law, depended not simply on his time to deliberate, but also on the controlling fact whether, with his mind inflamed by aggravating circumstances for which he was not responsible, he did deliberate and with coolness and premediation shoot the deceased. It may well be that his mental condition did not permit deliberate action, which requires reflection and a decision to act, before action is taken.

The charge of the trial justice did not present this question with the clearness which its importance demanded. While within the law, it was suggestive and edgewise toward the defendant throughout. Telling questions, each pregnant with plausible argument against the defendant, were asked in the interest of the people. Thus the trial justice, after reciting some of the evidence given by the witnesses for the prosecution, asked the jury: ‘Do you observe anywhere in the testimony any reason why any one of these witnesses should come here and commit willful perjury in a case of this kind? You heard them examined and cross-examined. Has anything transpired in the case which would justify you in saying that any one of these witnesses is willfully telling a falsehood about what took place? This is solely for you to determine. * * * Now, what did happen? Was there a quarrel in the saloon? Did the deceased attack the defendant? And then, when the defendant drew his revolver, did the deceased run away, withdraw from the quarrel and try to escape, and did the defendant then follow him and shoot him and kill him?’

While the court dwelt with emphasis on the fact that the defendant had time to deliberate, he did not with equal emphasis ask the jury to find whether he actually did deliberate, although the recent assault by the deceased, as the unprovoked aggressor, with the few seconds intervening between the assault and the fatal shot, made this the important question in the case. In view of the weight of evidence, the sole question of substance was not whether the defendant was guilty, but of what he was guilty, whether of murder in one of its degrees or of manslaughter in the first degree. In the excitement of the attack upon him and the previous threats to kill him, did he act with that deliberation and premeditation essential to the highest crime, or did he, blind with rage and fear, act upon sudden impulse, without reflection or even without intent to kill, in the heat of passion, with a dangerous weapon? Assuming that he went too far, did he start in fear and go on quickly and blindly under a passionate impulse? Was he in a mental condition to deliberate? These questions should have been presented to the jury fully and fairly, for the life of a human being depended upon them. They were not thus presented. The bulk of the charge and all its emphasis was laid upon murder in the first degree. Nearly eighteen pages are devoted to that subject, including the law of self-defense, and but three folios to the second degree and manslaughter. Murder in the second degree, so strongly suggested by the evidence, was dismissed with three sentences of explanation after the statute was read, while manslaughter in the first degree was confined to the statutory...