People v. Giusto

• Decision Date: 29 June 1912
• Citation: 206 N.Y. 67,99 N.E. 190
• Parties: PEOPLE v. GIUSTO et al.
• Court: New York Court of Appeals Court of Appeals

206 N.Y. 67

99 N.E. 190

PEOPLE

v.GIUSTO et al.

Court of Appeals of New York.

June 29, 1912.

Appeal from Supreme Court, Trial Term, Westchester County.

Angelo Giusto, Vincenzo Cona, Filepo De Marco, Lorenzo Leborio Cali, and Salvatore De Marco were convicted of murder in the first degree, and they appeal. Affirmed.James F. Dalton, of Yonkers, for appellant Giusto.

James Dempsey, of Peekskill, for appellants Cona, Filepo De Marco, and Cali. S. Alton Ralph, of White Plains, for appellant Salvatore De Marco.

Francis A. Winslow, Dist. Atty., of Yonkers (Lee Parsons Davis, of Yonkers, of counsel), for the People.

WILLARD BARTLETT, J.

On the morning of November 9, 1911, Mrs. Mary Hall was stabbed to death in the apartment which she occupied in the Griffin homestead, a lonely dwelling on a farm situated on a side road between Yorktown Heights and Bradley's Camp, in the county of Westchester. The homicide was actually committed by one or more members of a party of six Italians, who were engaged at the time in robbing, or attempting to rob, the inmates of the house. The party consisted of these five defendants and one Santa Zanza, whose conviction of murder in the first degree has heretofore been affirmed by this court. The robbery was planned by these men in Brooklyn. On the night before it was committed, they went to Croton Lake station, in the vicinity of the Griffin homestead, by a train on the Putnam division of the New York Central lines, which left 155th street, New York, at 12:15 a. m.; and, after leaving the train, they appear to have lurked about the neighborhood until an hour when it seemed likely that the men living in the Griffin homestead would have gone to their work, leaving only women in the dwelling.

The ground floor of the Griffin house was divided by a main hall, from which a stairway led to the second story. The portion of the house on the east side of this hall was occupied by Miss Anna C. Griffin, in whose employ was a hired man, who worked upon the farm. The rooms west of the hall were occupied by Mrs. Gertrude Rae and her husband and two young children; while upstairs on the second floor were two rooms occupied by Mr. and Mrs. Hall.

While she was eating her breakfast, Miss Griffin noticed a man walking around among the rocks in the edge of the woods north of the house ‘in a leisurely way, just looking over the country.’ After breakfast Mr. Hall and Mr. Rae went to Bradley's Camp, and the hired man went to husk corn in a field at some distance from the house. About 9 o'clock while Miss Griffin was engaged in ironing, she noticed some Italians, who came to a door where the family were accustomed to sell milk and stood there. She went to the door and asked them what they wanted. There were four or five of them. One of the men asked for eggs, and, upon being told by Miss Griffin that she had none, they said they wanted a quart of milk, which she measured out for them, receiving 50 cents in payment. In order to make change, she went inside to the dining room, taking the money from a little basket there; and, while she was counting it out, she observed that the men were watching her very intently through the kitchen window. Upon receiving the milk and their change, the men drank the milk and went away.

After an absence of about five minutes, the party returned to the door and again asked for eggs and also for chickens. Being told by Miss Griffin that she had neither, they requested another quart of milk, which she measured out in a cup and handed to Zanza. One of the men held out another 50-cent piece toward her, and, as she reached to take it, Cali seized her by the right wrist and pointed a revolver at her, exclaiming, ‘Hands up!’ The other men stood around Cali at the time. He ordered her to lie down, and Miss Griffin got down on her knees in obedience to his command; whereupon he directed the others to go into the house, and then led her in and demanded $3,000 from her. She said she had not so much money, to which he responded that he wanted all she had, and still covering her with his revolver he forced her to open her pocketbook and give him its contents, about $4.

Miss Griffin was the school tax collector of her district, and was also managing the farm. She kept most of her money in a safe in the hall, and upon Cali's demand for more she went into the bedroom adjacent to the dining room, where she obtained the key of the safe, to which she proceeded for the purpose of opening it. Cali had released her hand, but was following her with his revolver pointed at her all the time; and as they went past the foot of the stairs leading to Mrs. Hall's apartment above she saw a man coming downstairs, and as she knelt to open the safe another man coming out from Mrs. Rae's apartment. She opened the safe and took out $55 or $65, which she says she ‘handed up, and somebody took it.’ The money consisted of $10 bills and one $5. She described the $10 bills as ‘yellow backs,’ presumably thereby meaning gold certificates. Upon receiving the money, the men disappeared. ‘They went so quickly,’ says Miss Griffin, ‘I didn't know how they went.’

Mrs. Rae's experience with the marauders was somewhat different. She saw the Italians on both of their visits to the door at Miss Griffin's end of the house. When they passed her window the second time, she recognizedSanta Zanza, and saw ‘some man race around the front stoop and pull open the screen door and run in the entrance to the main hall leading upstairs.’ After that she heard a scream and the scuffling of feet right avove her, where Mrs. Hall's room was situated. It was a woman's scream. Alarmed by the scream and the scuffling of feet, Mrs. Rae closed her windows, pulled down the shades, ran out and got her little children, and locked all the doors leading out of her rooms, except that which opened into the main hall, which she forgot. This door was never used; there being a large brass double bedstead backed up against it. As Mrs. Rae stood in this bedroom with her children, she heard a noise, made by pushing the hall door against the bedstead, and the door gradually opened and Cona appeared, holding a revolver aimed directly at her. Taking one child in her arms and the other by the hand, Mrs. Rae unlocked the outer door and fled, pursued through the room and for some distance outside by Cona, who continued to cover her with his revolver. When she reached a point which she designates as ‘about the fourth stone,’ Cona turned and went back into the house, and Mrs. Rae started down the road. As she approached the stable, another man, identified as Filepo De Marco, came out from behind the building and pointed a pistol at her, with the effect of backing her up toward the house from which she had just come. Thereupon all the other men came out of the house and ran in one direction up a hill opposite the cow barn, while Filepo De Marco backed away from Mrs. Rae and also fled, after shaking his revolver at her and saying that he would come back and kill her if she told. Filepo De Marco at this time was armed, nor only with a pistol, but with a sharp glittering knife, which he used to defend himself against attack by Mrs. Rae's dog, which had accompanied her in her flight.

After the men had disappeared, Miss Griffin called to Mrs. Hall on the floor above, and, receiving no response, went upstairs. On entering the living room on the second story, she was horrified to find the body of Mrs. Hall, prostrate upon the floor of her apartment. Mrs. Hall had been gagged with her own apron, and there were stains of blood upon her dress. Miss Griffin could detect no signs of breathing, and Mrs. Hall was in fact dead as the result of three stab wounds inflicted by a knife, or some other sharp instrument, in the hands of one or both of the robbers, who had made their way upstairs while Miss Griffin and Mrs. Rae were resisting the others below.

This narrative of the circumstances of the robbery and murder is a statement of the facts which the jury were warranted in finding to have been established by the evidence beyond a reasonable doubt.

[1][2] The indictment in each case charged the defendant with murder in the first degree; by the first count as having been committed with a deliberate and premeditated design to effect the death of the said Mary Hall, and by the second count in the common-law form. This permitted a conviction upon proof of the killing of Mrs. Hall, without a design to effect her death, by the defendants while engaged in committing, or attempting to commit, a felony, to wit, robbery (People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; People v. Friedman, 205 N. Y. 161, 98 N. E. 471); and if the defendants were associated in the crime of robbery or attempted robbery, and the homicide was committed in furtherance of their common purpose by one of them, all his associates present or at hand, and aiding and abetting in the perpetration of the lesser felony, would be equally liable for murder in the first degree. Under the second subdivision of section 1044 of the Penal Law (Consol. Laws, 1909, c. 40),...