People v. De Martini

• Decision Date: 11 July 1916
• Parties: PEOPLE v. DE MARTINI.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 561

113 N.E. 542

PEOPLE

v.DE MARTINI.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Trial Term, New York County.

Charles De Martini appeals from a judgment of the Supreme Court in the county of New York, rendered on the 28th day of May, 1915, on a verdict convicting him of murder in the first degree. Judgment of conviction reversed, and a new trial ordered.

See, also, 213 N. Y. 203, 107 N. E. 501, L. R. A. 1915F, 601.James W. Osborne, of New York City, for appellant.

Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

WILLARD BARTLETT, C. J.

Patrick Cotter, a patrolman on the New York City police force, while on duty in Hughes avenue, between East 187th and East 188th streets, was killed by a pistol show wound at about half past 7 o'clock on the evening of the 4th of August, 1913. The defendant, an Italian 24 years of age, who came to this country in 1904 and is a barber by occupation, was charged with the homicide by an indictment for murder in the first degree. He has been twice tried and convicted, first in December, 1913, and a second time in May, 1915, on the trial which now comes up for review. The judgment upon the first conviction was reversed by this court and a new trial ordered in December, 1914, for error in permitting the prosecution to impeach its own witnesses. See People v. De Martini, 213 N. Y. 203, 217,107 N. E. 501, 506 (L. R. A. 1915F, 601) opinion by Werner, J. Judge Werner, in his opinion, said:

‘The one vital perplexing question in the case is the identity of the slayer of Officer Cotter.’

[1] Only one witness for the prosecution claims to have been an eyewitness of the homicide. This is Salvatore Civiletti, a lad who was 16 years old at the time of the trial. He testified that he saw the policeman shot by a man who stood behind a tree, 20 or 25 feet from the officer, who was out in the gutter about 30 feet from the witness. This man ‘was just walking, and when he got to the tree he stopped.’ The witness did not see what became of him. He had on ‘a light gray suit, or a dark gray suit, of something’-the witness could not tell ‘because it was just growing dark.’ He saw no one running after the shooting of the officer. The witness did not identify the man who he thus says did the shooting.

There being no other witness who testified to having seen the shooting, the identification of the defendant as the murderer depends wholly upon circumstantial evidence. The trial judge, however, refused so to instruct the jury. On the contrary, he said:

‘I hold that this is not a case where a conviction depends upon circumstantial evidence.’

The fact that evidently weighed most heavily against the defendant with the jury was his alleged flight after the homicide. To appreciate the bearing of the evidence on this branch of the case, we must consider some events preceding the killing of Officer Cotter.

There appear to have been two shooting affirays on the evening of the murder. The first occurred in Belmont avenue, which is the next avenue east of Hughes avenue, in which the officer was killed. Two pistol shots rang out in Belmont avenue, at a point about halfway between East 188th and East 189th streets, whereupon a crowd gathered and began to run or move rapidly toward East 188th street, following a man running in the same direction. The pursuit continued, according to the testimony for the prosecution, through East 188th street, down Hughes avenue, past the spot where Officer Cotter was shot, one block to East 187th street, through the latter street to Hoffman avenue, up Hoffman avenue to East 188th street again, along the same to Lorillard place, down Lorillard place back again to East 187th street, and thence along the same to the intersection of Third avenue, where the defendant, who was then 5 or 10 feet ahead of the crowd, was arrested by a police officer, whose home was in the vicinity, and who had rushed out upon hearing the summons of a police whistle. The route of this hue and cry, which appears to have been set in motion by the sound of the pistol shots in Belmont avenue, is delineated on a map or street diagram in the record.

The theory of the prosecution was that the defendant was concerned in some manner with a shooting affray in Belmont avenue; that he fled from the scene thereof, taking the course which has been described and pursued by an excited crowd; that on his way through Hughes avenue he murdered Officer Cotter; and that he continued on in his flight until he was taken into custody as has been stated. No pistol was found upon him; but a loaded cartridge and two empty cartridges were found in an areaway on Lorillard place through which the defendant passed after Officer Cotter was shot. It is argued that the circumstances connected with this incident justified the jury in finding that the defendant threw away his pistol and cartridges at this point in his flight.

The defendant testified in his own behalf, denying all complicity in the murder. He said that he was walking on Belmont avenue with a young woman named Norma Scarenci and a friend, Charles Dellamonico, when they were assaulted by two...