People v. Marks

• Decision Date: 21 May 1959
• Citation: 160 N.E.2d 26,188 N.Y.S.2d 465,6 N.Y.2d 67
• Parties: , 160 N.E.2d 26 PEOPLE of the State of New York, Respondent, v. Eddie MARKS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 465

188 N.Y.S.2d 465

6 N.Y.2d 67, 160 N.E.2d 26

PEOPLE of the State of New York, Respondent, v. Eddie MARKS, Appellant.

Court of Appeals of New York.

May 21, 1959.

John J. Loflin, Jr., and Florence M. Kelley, New York City, for appellant.

Frank S. Hogan, Dist. Atty., New York City (William Rand, Jr., and Richard G. Denzer, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

Appellant has been convicted of murder in the second degree for having shot and killed one Pickens on June 16, 1955, in the basement of 254-256 West 146 th Street, New York City. The Appellate Division has affirmed. The verdict of the jury is supported by evidence. Appellant advances two points (1) that the trial court erroneously excluded evidence of a declaration by the victim exculpating appellant, and (2) that the prosecutor made prejudicial statements in his summary to the jury. These points are discussed in the order named.

Patrolman Muldoom testified that at 10:30 a. m. on the day of the homicide he was directed by radio to drive his patrol car immediately to 260 West 146th Street, where the wounded man had been seen by a person who notified the police. On his way to that address, Muldoon observed that a crowd had gathered around 2742 Eighth Avenue, where he stopped his car and found Pickens lying in the vestibule. He was suffering from a gunshot wound in his left chest which was bleeding. Muldoon had a conversation with Pickens and then took him to the Harlem Hospital where they arrived at 10:40 a. m. There is evidence that the shooting occurred at 10:25 a. m. which was five minutes before the notification of Muldoon, who testified that he talked to Pickens within a minute afterward. According to this evidence, Pickens' statement to Officer Muldoon was made six minutes after he had been shot. Muldoon testified that he asked Pickens by whom he had been shot, and wrote the answer on a card which became part of the records of the Police Department. He was interrogated upon the witness stand by defense counsel: 'Q. Did you write on that aided card that the deceased was shot by one Edward Small?' An objection to this question was sustained. The officer testified that Pickens gave no indication that he was in fear of death at the time. Defense counsel offered the card in evidence, which was deemed marked for identification. This offer was made as a business record of the Police Department under section 374-a of the Civil Practice Act, but objections to the offer and to oral testimony of Pickens' declaration were sustained. No question has been raised concerning the form of the proof and the ruling of the court was based on the inadmissibility of any statement by Pickens under these circumstances. It is assumed that Pickens told Officer Muldoon that he had been shot by Edward Small.

Appellant's first point is that this declaration by the deceased apparently ently exculpating defendant should have been received in evidence as a spontaneous declaration under People v. Del Vermo, 192 N.Y. 470, 85 N.E. 690, 692. There the defendant was charged with having fatally stabbed one Tony Page in the abdomen. According to the testimony of the principal witness, they were walking on Dominick Street in Rome, New York, three abreast, Tony Page being between defendant and the witness. Defendant told Tony Page, according to this witness, that he had had connection with Page's wife and was going to have connection again. 'If you want to come and see,' said the defendant, 'I will go just right now.' Tony Page responded with an epithet at which the defendant laughed, they walked together a further distance of about two blocks, when the witness saw defendant run and exclaimed: 'What is the matter with that fellow?' Page walked forward four or five steps and dropped to the sidewalk. The witness inquired, 'What is the matter?' and Page answered, 'Del Vermo stabbed me with a knife.' The witness helped him to his home, where Page's wife met him, and there Page repeated in response to her inquiry: 'Del Vermo stabbed me with a knife', stating that he had been killed. Page died as the result of the would within several hours. The witness had not seen him stabbed. At the trial the first declaration made to the witness immediately after the stabbing, when Page dropped to the sidewalk, was admitted into evidence as a spontaneous declaration. The later declaration made in the presence of his wife in the house, accompanied by the exclamation 'Oh! my poor children! I am going to die. What are my children going to do after this?' was admitted as a dying declaration. Later, statements to others were admitted as dying declarations.

It is not contended that appellant's exculpation by the victim was admissible as a dying declaration. Officer Muldoon testified that Pickens did not indicate that he thought that he was going to die. The holding in the Del Vermo case, supra, about spontaneous declarations is addressed to our attention.

Professor Wigmore has analyzed this subject with his usual clarity, distinguishing spontaneous declarations from the doctrine of res gestate. The latter refers to verbal acts, forming part of the transaction itself. A spontaneous declaration, upon the other hand, is a true exception to the hearsay rule (Wigmore, Evidence, § 1745). It is a narrative of a past transaction, although usually of a transaction occurring immediately before. The basis of this exception to the hearsay rule is that the spontaneity of declarations of this kind gives more assurance of veracity than is true of the usual hearsay declaration. Wigmore says (§ 1747, subd. (I)): 'This general principle is based on the experience that, under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control * * *. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts facts just observed by him; and may therefore be received as testimony to those facts. The ordinary situation presenting these conditions is an affray or a railroad accident. But the principle itself is a broad one.'

It was tersely stated by Bleckley, C. J., in Travelers' Ins. Co. v. Shepard, 85 Ga. 751, 775-776, 12 S.E. 18, 26, that 'What the law altogether distrusts is not after-speech, but after-thought * * * That (the declarations) shall be or appear to be spontaneous is indispensable, and it is for this reason alone that they are required to be speedy.'

Wigmore says that there can be no definite or fixed limit of time within which the declaration shall have been made, that each case must depend upon its own circumstances (§ 1750), adding that the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. In this context, it may be appropriate to cite the often repeated language of Judge Vann, speaking for the unanimous court in People v. Gilbert, 199 N.Y. 10, 24, 92 N.E. 85, 89, concerning what constitutes premeditation and deliberation: 'While the time for reflection is not measured in minutes or seconds, it is measured by facts. The time must be long enough to make a choice, as the result of thought and reflection, and to act upon the choice thus made. It is obviously impossible to measure this period by the ordinary method of measuring time and, hence, it is necessary to measure it by what must be done.' Many cases are cited by Wigmore, in some of which the time interval is shorter and in others longer than in the case at bar. The passage which has been quoted from Wigmore is important not only on account of his authority and clarity, but also for the reason that it was followed in People v. Del Vermo, supra. Wigmore's distinction is recognized in Del Vermo betweem spontaneous taneous declarations and the narrower meaning of res gestae, and the first declaration by Page but not the later ones held to have been properly admitted on account of its spontaneity, immediately after Page fell to the sidewalk.

In People v. Hall, 260 App.Div. 421, 22 N.Y.S.2d 973, decided 32 years after Del Vermo, the Third Department held that statements by a decedent in a homicide case were erroneously admitted. The deceased there had been shot five times in the head and neck as a result of which he died a few hours later. The shooting occurred at a gasoline station, after which the victim made his way to his home on the opposite side of the highway about 100 paces away. There he attracted the attention of his wife and son, and staggered in badly wounded when the front door was unlocked. His wife testified that she and their son helped him to a chair and asked him what had happened, after which he said that he had been shot by the man who had been hanging around the gasoline station for several nights.

This question has been presented in negligence cases, where declarations have been excluded in Greener v. General Electric Co., 209 N.Y. 135, 102 N.E. 527, 46 L.R.A.,N.S., 975; Martin v. New York, N. H. & H. R. Co., 103 N.Y. 626, 9 N.E. 505; Waldele v. New York Cent. & H. R. R. Co., 95 N.Y. 274; Schoenfeld v. Long Island R. Co., 277 App.Div. 780, 97 N.Y.S.2d 271; Handel v. New York Rapid Transit Corp., 252 App.Div. 142, 297 N.Y.S. 216, affirmed 277 N.Y. 548, 13 N.E.2d 486. A contemporaneous declaration was admitted in Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 131 N.E.2d 902.

The Court of General Sessions gave this reason for excluding the declaration by Pickens in the instant case: 'As I...