People v. Giro

• Decision Date: 04 January 1910
• Citation: 90 N.E. 432,197 N.Y. 152
• Parties: PEOPLE v. GIRO et al.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 152

90 N.E. 432

PEOPLE

v.GIRO et al.

Court of Appeals of New York.

Jan. 4, 1910.

Appeal from Supreme Court, Trial Term, Kings County.

Carlo Giro, alias Alexander Metzler, was convicted of murder in the first degree, and he appeals. Affirmed.

The indictment contains two counts, each charging the defendant Carlo Giro and one Frank Schleiman, jointly, with the crime of murder in the first degree. The first count alleges the killing of Sophie L. Staber by them while they were engaged in committing a felony, to wit, the crime of burglary. The second count sets forth the crime in the common-law form, with reference to the same person, and at the same time and place. During the trial of the defendant Giro, which is now before the court for review, the district attorney, when requested to elect on which count he intended to proceed, announced that he chose the first, relating to homicide while engaged in the commission of a felony. The homicide occurred on the 8th of July, 1909, the indictment was filed on the 12th of the same month, the trial was commenced on the 5th of October following, and the next day a verdict of guilty of murder in the first degree was rendered. Judgment of death was pronounced on the 8th of October, and the appeal therefrom was argued on the 16th of December, 1909.Hector McG. Curren, for appellant.

John F. Clarke, Dist. Atty., for the People.

VANN, J. (after stating the facts as above).

On the 7th of July, 1909, George Staber was living with his wife and children at No. 455 East Eighteenth street, in Flatbush, a suburb of Brooklyn. His family consisted of himself, then 62 years of age, his wife, Sophie L. Staber, aged 59, his son, Edward, a young man of 24, and two daughters, whose ages do not appear. They all retired at about 11 o'clock, after locking up securely in the usual way. Mr. and Mrs. Staber and Edward slept on the second floor, and the daughters on the third. The second floor consisted of a chamber, three bedrooms, a bathroom, and a hall four feet wide, with stairways leading therefrom to the first and third floors. The rear bedroom, at the end of the hall, was occupied by Edward, while his father and mother slept in the next room, which was separated from the bathroom by a partition six or eight inches thick. All these rooms opened into the hall, and the doors were all open on the occasion in question. The stairway leading from the hall to the floor below was nearly, but not quite, opposite the door opening from the hall into the room of Mr. and Mrs. Staber.

According to the testimony of Mr. Staber, he was awakened at about 3 o'clock in the morning, and felt that some one was in his room. As he called out, ‘Who is there?’ he saw two men, one of whom, the defendant Giro, sprang to his bedside, flashed an electric light in his face, and holding a revolver at his head, said: ‘Keep quiet. We want your money.’ At this time the other man, the defendant Schleiman, was ransacking the drawers of a bureau which stood against the wall near the foot of the bed. Mrs. Staber slept on the side of the bed next to the door, and Giro, as he covered Mr. Staber with his revolver, stood at the bedside leaning over her. Schleiman kept on working at the drawers, and let something fall which made a noise, when Maude, one of the daughters, who slept on the floor above, called out, ‘Father, what is the matter?’ Mr. Staber, with the revolver at his head, dared not answer, but he coughed, when Giro in a threatening manner told him to hush. The daughter continued he, outcry and soon Edward shouted, ‘Maude, I am coming.’ At that instant Giro jumped away from the bed, and rushed through the door into the hall, and Mr. Staber heard a scuffle in the direction of the bathroom, followed by two shots. He also heard the voices of two men, and recognized the voice of his son as one of the men engaged in a struggle in the bathroom. Schleiman, who in the meantime had left the bureau and had gone to a closet in the corner diagonally opposite the door of the bedroom, when the two shots were fired, turned and shot across the bed toward the door, and immediately ran out of the room. Mr. and Mrs. Staber were still lying in bed, unharmed by the three shots which thus far had been fired, and as Schleiman left their bedroom Mr. Staber rushed to the back window and called for help. As he did so he heard his wife say, ‘Oh! Eddie,’ referring to her brave son who was fighting next door in defense of the family, and as he turned around he saw her jumping from the bed, and heard the scuffle still going on in the bathroom. At once two shots were fired in quick succession from the hall into the bedroom, and Mr. Staber fell, with her head against the bureau and her feet from 12 to 15 inches inside of the door. She neither spoke nor moved, but died almost instantly. When these shots, the fourth and fifth, were fired the struggle was still going on in the bathroom. After his wife fell, Mr. Staber heard two or three shots ring out in the hall.

According to the story of Edward, the son, he was awakened at about 3 o'clock by hearing his sister cry, ‘Help, police, murder.’ He jumped out of bed and ran to the door, when an electric light was flashed in his eyes which almost blinded him, but he tried to catch hold of something, and caught a man around the neck. The man held a flashlight in his right hand, and fired a revolver from his left, the bullet passing through the pajamas of Edward and stopping in the bed-clothes of his bed. The shot set his pajamas on fire, but he tore them from his back, and, grappling with the man, turned him around, when he shot again; the bullet landing in the door jamb. Edward shoved the man into the bathroom, and threw him down so that he fell on his left knee and left hand, and in doing so dropped the revolver. Edward grabbed it, and there was a struggle for its possession, but he kept it, and seeing a flash in the hall, fired at the flash. The man then bent down and ran from the bathroom. Edward followed him out, and, hearing a noise as of some one falling on the stairway leading to the first floor, leaned over the bannister, and fired down into the darkness in the direction of the noise. He then heard his father say, ‘Mother is shot,’ and at once went to his mother's room, where he found her dying. The man whom he had been struggling with in the bathroom was the defendant Giro, and the defendant Schleiman, when arrested a few hours later, had two bullets in his body.

The surgeon who made the autopsy found that a bullet had entered the right shoulder of Mrs. Staber, and, passing through both lungs, had lodged under the left shoulder blade. There were five powder grains within an area of three inches about the hole where the bullet entered. The doctor testified that Mrs. Staber was in normal health, and that the would would have caused death in one or two minutes.

Both defendants were arrested within a few hours after the homicide, Giro at No. 875 Utica avenue, in the outskirts of Brooklyn, and Schleiman, where he was lying in some bushes about 150 feet from said avenue. A bag containing a pocketbook and a pair of eyeglasses belonging to Mrs. Staber, which were kept in the bureau that was ransacked, were found buried under a light covering of earth about 25 feet from the spot where Schleiman was arrested. He had a fresh bullet would in his left leg and another in his right arm.

It...