People v. Guadagnino

• Decision Date: 02 May 1922
• Citation: 135 N.E. 594,233 N.Y. 344
• Parties: PEOPLE v. GUADAGNINO.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 344

135 N.E. 594

PEOPLE

v.GUADAGNINO.

Court of Appeals of New York.

May 2, 1922.

Luigi Guadagnino was convicted of murder in the first degree, and he appeals.

Reversed, and new trial granted.

Appeal from Supreme Court, Trial Term, Monroe County.

Charles E. Callahan, of Rochester (Arthur E. Sutherland, of Rochester, of counsel), for appellant.

William F. Love, Dist. Atty., of Rochester (Marsh N. Taylor, of Rochester, of counsel), for the People.

CRANE, J.

At 2 o'clock in the morning of March 19, 1919, on Plymouth avenue near the corner of Tremont street in the city of Rochester, the defendant shot and killed James H. Upton, a police officer. He has been tried and convicted of murder in the first degree. The defendant at the time of the trial was 35 years of age, married, and had a family of five children. He lived at 186 Plymouth avenue not far from the scene of the homicide. At this place he conducted a shoe repairing shop living over the store. He owned the building, having purchased it in the fall of 1918 for $6,350, paying $500 down, and securing the balance by mortgage upon the property. His reputation in the neighborhood was apparently good, and he appears to have been an industrious man. On the evening preceding the homicide, he had been in the company of two countrymen of his. Salvatore Stagnito and Crispino Alaimo, with whom he had been eating and drinking. After leaving the restaurant next to the Hotel Regina, at about 11 o'clock, the three men went to the home of Guadagnino where he and Stagnito drank considerable wine. Alaimo did not drink. When his two friends started for home, the defendant volunteered to go with them as far as the street car, which they were to take. They proceeded up Plymouth avenue to Tremont street, on the corner of which was the Versage grocery store. Here they stopped and conversed. Alaimo became impatient when Guadagnino suggested that they go back to his house and get another drink, as the next day was an Italian holiday. Alaimo started to leave, and crossed the street. Witnesses for the people say that the three men, possibly a fourth walked down Tremont street a ways and then came back in the direction of Plymouth avenue. While these men were on the corner, a Mr. and Mrs. Richards, who lived opposite, saw two men on the corner acting, as they thought, suspiciously, with all the appearance of attempting to enter the door of the grocery store. Mrs. Richards telephoned to the police, who, in a few moments, came up in an automobile, and arrested Stagnito and Alaimo.

It is conceded by the district attorney that these men had committed no felony, nor were they in the commission of a felony at the time of the arrest. It was while these men were walking back through Tremont street toward Plymouth avenue that the police car came up. The defendant, hearing it, ran through an alleyway in back of the Versage grocery store, then through a lot adjoining it on the north, and proceeded toward the westerly sidewalk of Plymouth avenue. He was spied by Officer Upton, who ran after him. The officer gained on him, calling out at the time, ‘Stop, or I will shoot.’ The defendant proceeded up the avenue, jumped behind a tree, as some of the witnesses say, and shot the officer, who was within a short distance of him. This tree was in front of No. 197 Plymouth avenue, the second building above the Versage grocery store. The defendant says that he thought it was a ‘holdup’; that he did not know it was an officer who was pursuing him. He had on his person, so he stated, $150. He testifies that he did not get behind a tree, but turned suddenly, and fired at his pursuer. A permit to carry a pistol had been issued to him. Officer Upton died almost instantly, having been shot through the heart. The defendant ran away, and went to Buffalo, afterwards to Pittsburg, and was not arrested until nearly two years thereafter. In his statement made when arrested, as well as in his testimony upon the stand, he insisted that he did not know he was being pursued by on officer, that he had been drinking quite a bit, that he thought some one was going to rob him, and that he ran through the yard to go home. Upton he knew, as he had done work for him in repairing his shoes.

Except in minor details, there is no contradiction in the evidence regarding this occurrence. No motive whatever can be given or is furnished by the people for the crime. While a motive is not essential in cases of this kind, yet the fact that the district attorney can suggest no reason why the defendant should kill Upton bears materially upon the weight of the evidence claimed to show a premeditated and deliberate design to take life. As before stated, no claim is made that these men were attempting to burglarize the Versage grocery store or had been in the commission of a felony. Whatever charge was made against Stagnito and Alaimo was subsequently dismissed. The fact that these three men were standing upon the corner, two of them no doubt under the influence of liquor, and were walking about aimlessly, was enough to arrest the attention of the neighbors, and to justify the summoning of the police. It is not at all improbable that the defendant, excited by liquor and having some money upon his person, became frightened, and thought that he was being pursued in a ‘holdup.’ The officer called out, ‘Stop, or I will fire!’

[1] If the defendant had committed no crime, and was not intoxicated in the public streets, the law gave no occasion for his arrest. Code Cr. Proc. § 177; Penal Law, § 1221; People ex rel. Kopp v. French, 102 N. Y. 583, 7 N. E. 913. Under the charter of the city of Rochester (section 332), police officers were given the powers of peace officers, and the duty of arresting any person violating a penal ordinance of the city. No ordinance was violated. Nevertheless Upton was an officer, and called out to Guadagnino to stop. The defendant should have stopped, if he knew it was an officer of the law calling to him. The officer was dressed in uniform, and the defendant, if not too excited, could have discovered this fact, had he been in a position or state of mind to see clearly.

[2] In a case of murder in the first degree, this court may order a new trial, if it be satisfied that the verdict is against the weight of evidence or that justice requires a new trial. Code Cr. Proc. § 528; People v. Becker, 210 N. Y. 274, 104 N. E. 396. It is not sufficient, as in many other cases brought here for review, that there be some evidence from which the jury could have found a verdict against the defendant. There is evidence from which it might be said Guadagnino had time to reflect and to form an intent to kill Upton. The drawing of the pistol, the distance run, the jumping behind a tree, the refusal to stop when called to by an officer in uniform-all these things could and might lead some to think that the defendant was guilty of premeditated murder. However this may be, we think that, upon all the evidence and the circumstances of the case, it is very doubtful whether this defendant shot and killed Upton with any premeditated and deliberate design to effect his death. Guadagnino was upon the street with his companions, and, as stated, was more or less under the influence of the wine which he had been drinking. He had with him a pistol for which he had a permit. An automobile suddenly drew up, and he ran toward his home, only a few blocks away, pursued by a man who told him to stop or he would shoot. He had apparently done nothing for which he could be arrested. As this man gained upon him, and came within about four feet of him, he turned, fired, and ran away. Considering the position which the defendant held in the community, the fact that he was not attempting or committing any crime which would justify his arrest, that there was no reason for his killing Upton, whom he knew, and all the other circumstances above detailed, it is very doubtful in our judgment whether the defendant was guilty of any premeditation and deliberation which warranted his being convicted of murder in the first degree.

[3][4] Even if there be evidence from which the jury would be justified in finding premeditation and deliberation sufficient to make out the crime of murder in the first degree, it was of such a nature that it accentuates and emphasizes any errors which may have been committed upon the trial of the case. The court charged the jury as follows:

‘Now, gentlemen, to constitute the crime of murder in the first degree, there must not only be the intention to kill, which I have spoken to you about, but a deliberate and premeditated intention to kill, a previously decided intent and design to kill. Such design must precede the killing by some appreciable space of time, but the time need not be long. It must be sufficient for some reflection or consideration on the matter, for a choice to kill or not to kill, and for the formation of a definite purpose to kill. When the time is sufficient for those, it matters not how brief it is. The human mind acts with celerity, which it is sometimes impossible to measure, and whether a deliberate and premeditated design to kill was formed must be determined from all the circumstances of the case. If there was sufficient deliberation to form a design to take human life, and to put that design into execution by destroying a human life, there was sufficient deliberation to constitute murder, no matter whether the design was formed at the instant of striking the fatal blow, or whether it was contemplated for months. It is enough if the intention precedes the act, although the act follows immediately. If there was hesitation or doubt to overcome, a...