People v. Governale

• Decision Date: 18 December 1908
• Parties: PEOPLE v. GOVERNALE.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 581

86 N.E. 554

PEOPLE

v.GOVERNALE.

Court of Appeals of New York.

Dec. 18, 1908.

Appeal from Court of General Sessions, New York County.

Salvatore Governale was convicted of murder in the first degree, and he appeals. Affirmed.Charles E. Le Barbier, for appellant.

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

CHASE, J.

The defendant was indicted for the crime of murder in the first degree. On the trial he was sworn as a witness in his own behalf, and testified that he shot George M. Sechler while in the hallway hereinafter mentioned. He further testified: ‘I fired to kill.’

On Sunday afternoon, April 14, 1907, about 5:45 o'clock, two young Italian men entered a small building maintained as a urinal near the south end of Washington Square Park in the city of New York. The defendant and his brother were then in the building, but the defendant's brother had started to leave the building as the young men entered, and one of the young men accidentally ‘bumped against him,’ whereupon a quarrel ensued, and defendant's brother backed the young man against an iron railing. The defendant passed out of the building and 10 or 20 feet from the entrance thereof, and stood on a grass plot near some shrubbery. The companion of the young man who had been pushed against the railing went to his assistance, and, after some fighting, all came out of the building. The two young men mentioned were leading, and the defendant's brother was a short distance behind them. As the young men turned in the direction where the defendant was standing, he immediately fired a revolver three times in the direction of the young men, one shot from which entered the left leg of the young man that had been to the aid of his companion. As the young man who was shot staggered back, the defendant's brother ran up Fifth avenue, and the defendant placed his revolver in his pocket and ran across the lawn to and across Fourth street and down Thompson street. One Fogarty, a lieutenant of the New York police force, then in plain clothes, was about 100 yards north of where the firing took place. He heard the shots, and turned in the direction of the noise and saw the defendant turn and run, and he followed him. Several persons in the park followed, and the crowd increased as they went south. Fogarty called out: ‘Stop that man.’ About 50 feet north of Third street, Sellick, a patrolman on duty in plain clothes, attempted to stop the defendant. Defendant was then running in the middle of the street, and, to avoid Sellick, he ran upon the sidewalk and jumped over an open cellar way and passed Sellick. Sellick turned and followed him. At about Third street Sechler, a patrolman on duty in plain clothes, attempted to stop the defendant, and failed to do so. Sechler immediately turned and followed the defendant. The crowd increased in numbers, and at 232 Thompson street the defendant ran into a hallway. Sellick and Sechler followed him. The hall extends back about 21 feet from the street entrance, and then turns to the left at a right angle to a stairway commencing 6 feet from the angle. There is a passageway along the right hand side of the stairway leading to a door which opens into a yard or court. The defendant stopped by the stairway. The hallway was quite dark, except that the defendant, looking from the interior thereof toward the open doorway, could see his pursuers at the street. When Sellick and Sechler approached within seven or eight paces of the defendant, he shot them both; the shots being fired in rapid succession. Sellick fell, but Sechler ran to and grabbed the defendant, not appreciating that he had been mortally wounded. Fogarty followed, and Sechler and Fogarty took the defendant to the doorway, when Sechler exclaimed: ‘God, I'm shot!’ Help was obtained for Sechler, and he was taken to a hospital, where he died about 10:30 that evening.

No. 232 Thompson street is about 550 feet from where the shooting took place in the park. The defendant in his testimony says that his brother's assailants during the quarrel fired two shots, and that ‘because they were beating my brother I fired two shots, and then I ran.’ He further said that the shots fired by him in the park were fired at the ground to scare his brother's assailants and not at any particular person, and that he ran away to save himself. The young men in the park each testified that he did not have a revolver. The defendant did not produce his brother as a witness nor explain his absence.

In explanation of the shots fired in the hallway defendant says that he supposed the people that followed him were friends of the young men in the park that had the altercation with his brother, and that both of the men who entered the hallway had revolvers in their hands, and one of them fired at him, and that he fired to kill because they fired at him. No one heard more than two shots in the hallway, and after the shooting the revolver taken from Sellick, which was a five shooter, contained four unexploded shells and one empty chamber. It did not contain an exploded shell. The revolver taken from the deceased was a five shooter, and contained five unexploded shells. The jury could have found that the defendant testified falsely in saying that either Sellick or Sechler fired at him. The defendant's revolver was a five shooter, and contained five exploded shells. So far as the testimony taken on the trial is in conflict with that given by the people, it was such that the jury could have, and they probably did, believe the people's testimony as against that given by the defendant and the witnesses produced on his behalf.

The testimony offered on behalf of the people supplemented by the admissions of the plaintiff prove beyond controversy that the defendant shot and killed Sechler, and that he intended to kill him. It was necessary for the jury to determine two important and seriously controverted questions, viz.: (1) Did the defendant shoot Sechler with a deliberate and premeditated design to effect his death? (2) Did the defendant shoot Sechler in the lawful defense of himself? The jury determined these questions against the defendant.

The defendant's principal contention on this appeal is that the trial court erred in allowing testimony of what occurred in the park to be received and considered by the jury in determining whether the defendant was guilty of the crime of murder in the first degree. It is a general rule that evidence of a crime which is distinct and independent of the one of which the defendant stands indicted cannot be received on his trial. The commission of one crime is not in itself any evidence to be considered by a jury in determining a defendant's guilt of another crime in no way connected therewith. A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one. Coleman v. People, 55 N. Y. 81;People v. Molineux, 168 N. Y. 264, 61 N. E. 286,62 L. R. A. 193. Evidence of the occurrences in the park was not proper to be considered by the jury in determining whether the defendant shot Sechler, neither was it proper for their consideration for the purpose of determining that the shooting of Sechler was done by the defendant while engaged in the commission of a felony in the park. The shooting in the park was an independentcrime. People v. Huter, 184 N. Y. 237, 77 N. E. 6. There are exceptions to the general rule excluding all evidence of crimes alleged to have been committed by a defendant other than the one for which he is being tried. People v. Molineux, supra. The important questions for the jury in this case were the two that we have hereinbefore enumerated. The occurrences disclosed in the record beginning at a time when the shots were fired in the park and ending with the defendant's arrest include but a very few minutes of time, and they all have a distinct relation to and bearing upon the defendant's apprehension of great personal injury by his pursuers and upon his intent in shooting Sechler. A private person as well as a peace officer may without a warrant arrest a person for a crime committed in his presence, and when the person arrested has committed a felony, although not in his presence. Code Cr. Proc. § 183. If the defendant committed a felony in the park, any of the persons present or those that followed him had express statutory authority to arrest him. Even the statutory requirement that, before making an arrest, a private person must inform the person to be arrested of the cause thereof and require him to submit, does not apply to a case where the person arrested is in the actual commission of the crime or is arrested on pursuit immediately after its commission. Code Cr. Proc. § 184. The intent and purpose of the defendant's pursuers and their rights in regard to interfering with the defendant were very material. If the defendant was wholly innocent of any crime and not liable to arrest, and he was pursued by a mob intent upon taking his life or of doing him great personal injury, his rights in self-defense would have been entirely different from what they were as a criminal fleeing from justice. It was material, therefore, to show the occasion for ...