People v. Marendi

• Decision Date: 19 January 1915
• Parties: PEOPLE v. MARENDI.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 600

107 N.E. 1058

PEOPLE

v.MARENDI.

Court of Appeals of New York.

Jan. 19, 1915.

Appeal from Kings County Court.

Guiseppe Marendi, true name Joseph Morena, was convicted of murder in the first degree, and he appeals. Reversed and remanded.James C. Danzilo, of Brooklyn, for appellant.

James C. Cropsey, Dist. Atty. of Brooklyn (Ralph E. Hemstreet, of Brooklyn, of counsel), for the People.

MILLER, J.

On the evening of February 5, 1914, James O'Connell was shot, while peaceably walking along Hoyt street in the borough of Brooklyn. He died from the effects of the wound on February 14, 1914. For that homicide the defendant upon sufficient evidence has been convicted of murder in the first degree. I shall review the evidence only as it bears on the law points presented by the record.

The theory of the people was the shortly before the shooting of O'Connell the defendant had shot Edward Murtha, a police officer, who was searching him for concealed weapons; that O'Connell got in the way of his flight from the scene of that crime; and that to effect his escape he shot O'Connell with the deliberate and premeditated design to kill. The defendant was in company with a fellow native of Italy, Tony Scaltifalso, when Officer Murtha overtook and started to search them. He first searched Scaltifalso, and then proceeded to search the defendant, when a scuffle ensued, and he called upon two civilians to assist him. He and one of them held the defendant's hands and the other started to feel of the defendant's clothing, when a pistol was discharged, the officer fell mortally wounded, and the defendant and Scaltifalso, who meanwhile had been standing a few feet away, started to run. No one saw a pistol in the defendant's hand at that time, and, as far as appears, neither the officer nor the civilian had discovered one on his person.

The theory of the defense was: That Scaltifalso fired the shots that killed both Officer Murtha and O'Connell. That a crowd collected in pursuit of the fugitives. That, in their flight after the shooting of O'Connell, Scaltifalso handed the pistol to the defendant saying:

‘Here, take this revolver and defend yourself. I will be able to defend myself. I am a larger man than yourself.’

That the defendant being frightened took the pistol, and in his flight fired two shots in the air, and when about to be apprehended dropped the pistol. Scaltifalso succeeded in making good his escape.

[1] The trial court submitted the case under both subdivisions 1 and 2 of section 1044 of the Penal Law (Consol. Laws, c. 40), and in respect to the latter subdivision, said:

‘So that if you should find that this defendant was under arrest or under lawful restraint by Officer Murtha, and that afterwards he was escaping from lawful custody, and that then and under those circumstances he fired the shot at O'Connell, which shot ultimately killed O'Connell, and that he did this without a design to effect the death of O'Connell, but under the conditions that I have given you, and the circumstances set before you, your verdict could be that of guilty of murder in the first degree.’

The defendant specifically excepted to the submission under subdivision 2. As far as material, that subdivision provides:

‘The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed: * * * Without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise.’

The court charged, at the defendant's request ‘that, unless they find that this defendant committed this act after deliberation and premeditation, they cannot find him guilty of murder in the first degree,’ saying, ‘I have already charged it,’ and later, ‘that any felony which had been perpetrated previous to the commission of the shooting of O'Connell, whether by this defendant or by another, had been consummated, and was at an end,’ and, ‘that the carrying of a dangerous weapon, if the jury believes that this defendant shot O'Connell, and the fact that he had a dangerous weapon, was merged in the larger crime, that is, the shooting, and cannot be considered as a felony which he was in the act of committing while the shooting was done, if he did shoot O'Connell,’ and in that connection added:

‘But I will also say that the jury may still keep in mind what I have already charged, regarding the effect of the previous crime, if it was a crime, and if it was committed by this defendant, as regards his subsequent conduct when he passed into Hoyt street, and as to what he did then. I charge as requested.’

While possibly the jury may have been confused, they could not have understood that the court had withdrawn from their consideration anything submitted to them in the main charge.

In my opinion the evidence did not justify the submission of the case to the jury under said subdivision 2, and, even if it did, the jury were not correctly instructed on the point.

Plainly the defendant was not engaged in the commission of, or attempt to commit, a crime upon Officer Murtha when O'Connell was shot. The prior crime was completed, and the assault upon O'Connell was merged in the greater crime. People v. Huter, 184 N. Y. 237, 77 N. E. 6;People v. Spohr, 206 N. Y. 516, 100 N. E. 444. Nor was the crime of carrying a dangerous weapon one, in the commission of which the defendant was engaged, within the meaning of the statute. Indeed, those crimes were eliminated by the charge of the court and need not be further discussed.

[2] The court intended to submit to the jury the question whether the defendant was engaged in the commission of the felony of escaping from the lawful custody of an officer upon a charge or arrest for a felony in violation of section 1694 of the Penal Law, which provides:

‘A prisoner who, being confined in a prison, or being in lawful custody of an officer or other person, by force or fraud escapes from such prison or custody, is guilty of felony if such custody or confinement is upon a charge, arrest, commitment, or conviction for a felony; and of a misdemeanor if such custody or confinement is upon a charge, arrest, commitment or conviction for a misdemeanor.’

Assuming that the defendant fired the fatal shot at Officer Murtha, the truth undoubtedly is that the shooting of O'Connell, if done by the defendant, was to escape the consequences of the earlier completed crime. On that theory the jury might very well have found that the defendant formed the deliberate and premeditated design to shoot any one who got in the way of his escape; but that did not justify the submission of the case to the jury so as to permit a conviction of murder in the first degree for an unintentional homicide, committed without such a design.

It may be assumed that the defendant was guilty of the felony of carrying concealed weapons, indeed, not being a citizen, of the felony of having a dangerous weapon in his possession. Penal Law, § 1897. The people produced a witness who heard and saw all that was said and done immediately preceding the shooting of Officer Murtha. It plainly appeared from his testimony that the officer was engaged in searching Italians. Just before overtaking the defendant and Scaltifalso, he had stopped an Italian, searched him, and, not finding anything, had told him to go back. He had searched Scaltifalso and, again not finding anything, had told him ‘to get out of there.’ He started to search the defendant when a scuffle ensued, and he called upon the said witness ‘to break his [the defendant's] hold.’ The witness describes a scuffle, participated in by the three. The officer then called to his assistance a fourth man, who started to feel of defendant's clothing while both his hands were held by the other two, and during the scuffle a pistol, which no one saw, was discharged in some unexplainedmanner, whether intentionally, assuming it to to have been in the defendant's possession, or accidentally in the struggle, is largely a matter of conjecture. It was thus affirmatively established that the officer, without informing the defendant of the cause of his arrest or detention, or even that he was under arrest, had merely detained him temporarily for the purpose of searching him, presumably to ascertain whether he had a weapon upon his person. We may presume that in the discharge of his duty the officer would have arrested the defendant for a felony if the search had continued until a pistol was discovered, but it is a mere guess, and one too opposed to the only reasonable inference from the facts proved, to say that he had in fact discovered the pistol or had determined to arrest the defendant for carrying it.

“Arrest' is the taking of a person into custody that he may be held to answer for a crime.' Code of Criminal Procedure, § 167.

The defendant was not taken into custody by Officer Murtha ‘that he might be held to answer for a crime,’ but only that he might be searched. In case of an arrest under a warrant, ‘the defendant must be informed by the officer that he acts under the authority of the warrant and he must also show the warrant, if required.’ Code of Criminal Procedure, § 173. The warrant must state the crime charged. See Code of Criminal Procedure, §§ 151 and 301. In Howard v. Gosset, 10 Q. B. 359, a thoroughly considered case, Lord Coleridge stated the reason for the requirement that the warrant should disclose the cause of the arrest as follows:

‘Several reasons are given; not the least important is that the party called upon to submit to the process of the law may know what it is that is charged against him, and for what it is that he is called upon to yield himself a prisoner. If no cause, or an insufficient cause, appear, he takes his measures accordingly at the time; and he must judge from the information communicated at the time. Should he resist, and kill or injure the officer in his resistance,...