People v. Montesanto

• Decision Date: 13 July 1923
• Parties: PEOPLE v. MONTESANTO.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 396

140 N.E. 932

PEOPLE

v.MONTESANTO.

Court of Appeals of New York.

July 13, 1923.

Appeal from Trial Term, Monroe County.

Antonio Montesanto was convicted of murder in the first degree, and from the judgment entered on the verdict of a jury he appeals.

Reversed, and new trial ordered.

Pound and McLaughlin, JJ., dissenting.

James Mann and Herbert B. Thomas, both of Rochester, for appellant.

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

ANDREWS, J.

Carmelo Genevola had a small butcher shop in the city of Rochester. It fronted upon the street, and in the rear were apartments where he and his wife lived. Some time after 10 o'clock of the evening of November 12, 1921, two men entered the shop, and, after some conversation, shot Genevola, inflicting a fatal wound, and also shot his wife, who, on hearing the conversation, had appeared at the rear door. The men were unmasked, and are described as young Italians, one a ‘short man’ and one a ‘tall man.’ After the shooting they escaped to a waiting automobile in a street around the corner. Some weeks later two young men, respectively 22 and 25 years old, named Antonio Montesanto and Carmelo Faraci, were arrested for the crime. The former has been tried and convicted, and the latter is still confined pending his own trial.

Faraci was the nephew of the wife of a brother of the deceased. He was well known to Genevola and to his wife. Montesanto also had been well known by both for several months before the homicide. He seems never to have previously come in conflict with the Penal Law, and there is testimony uncontradicted by the state that his character had been good.

The theory of the state is that the homicide was the culmination of an unsuccessful attempt at extortion. It seems that for some time the deceased had been receiving so-called Black Hand letters. The first was a request to bring $1,000 to a fixed place. The deceased gave this letter to his brother Cologero Genevola, asking him to show it to Faraci, and to see if Faraci could not discover the author. The next day Faraci came to the shop of Cologero. There is nothing to indicate that this was not an ordinary call such as he was accustomed to make. Cologero Genevola handed the letter to Faraci, asking him to read it, and while he was reading it Montesanto also called, as was his custom. Cologero then showed the letter to Montesanto requesting him to find out, if he could, who had written the letter, and Faraci and Montesanto departed with it, and made or pretended to make an effort to do so. A second letter soon came to the deceased, and again Montesanto and Faraci were consulted about it. Montesanto knew of a Rochester Italian, named Luigi Moia, who had a bad reputation, and it occurred to him that Moia was either the author of the letters, or could find out who the author was. He says that he and Faraci had conversations with Moia which they reported to the deceased, and that Moia told him, and he reported, that the letters might be destroyed as everything had been arranged; and the two letters were thereupon destroyed. That he made such a report, and that the letters were in consequence destroyed is conceded. It may be noted that Moia denies any such conversations between himself and Montesanto. Apparently, however, Montesanto attempted to arrange in good faith an interview between Cologero and Moia. If he did it would corroborate his story. It also appears that in his talks with Montesanto, the deceased and his wife had spoken of appealing to the police. On one occasion, at least, when such a purpose was expressed, Faraci replied ‘all right.’ In a third letter subsequently received, the author said that he understood that Genevola vola spoke of going to the police, but that if he did so it would be the worse for him. Finally a fourth letter was received, containing a threat to kill the whole family. All this time the deceased was appealing to the defendant and Faraci for help, and they were promising to assist him. Almost daily consultations occurred. On one occasion Montesanto wanted $25 or $30 to have a celebration for the purpose of getting the men together who were writing the letters, so that the police might arrest them. And on various occasions money was spoken of, but apparently only small sums were mentioned to compensate Montesanto for his time and for a loss in his business.

The jury was asked to infer either that Montesanto and Faraci were the authors of these letters, or that they knew who the authors were, and were engaged in a conspiracy to extort money from Genevola. As substantiating this inference, the people point to the knowledge which the author evidently had of the likelihood of an appeal to the police; to his knowledge of a certain visit to a stone quarry to meet the blackmailers; to the fact that on Montesanto's statement the first two letters were destroyed; to the fact that Moia denies the conversation reported to have been had with him and to the fact that the plan for a feast and the subsequent arrest of the guilty parties seems incredible. On the other hand, the defendant and Faraci, at least during the early part of the transaction, were assuring the deceased that he had nothing to fear, that everything was settled and that they would discover who was behind the letters. Such a line of action seems inconsistent with the theory which the state adopted. Further, their connection with the business originated in requests by Genevola for aid, and not because of any act or word of theirs. On the whole, the inference is at best a possible one.

The exact hour of the homicide may not be fixed. The call for the police came at 10:35. Various witnesses who heard the shots and the ensuing commotion estimate the time at from 10:20 to 10:30. For some minutes before the actual shooting, the automobile in which the murderers escaped had been standing in the side street. Two witnesses, Louis Polino and Anthony Arena, saw the murderers shortly after 10 o'clock as they were approaching and entering the store. The former knew Montesanto but not Faraci. He testifies that Montesanto was not one of these men. Arena knew both the accused, and he says that neither of them were the two men that he saw. A Mrs. Marks and her daughter saw the murderers as they escaped to the automobile. Neither could identify them, but Mrs. Marks says that one of the men was 6 inches taller than the other, and Miss Marks refers to them as the ‘short one’ and the ‘tallest one,’ and describes one as ‘real tall.’ Montesanto is 5 feet 4 1/2 or 4 3/4 inches in height. Faraci is 2 inches shorter.

After the shooting Mrs. Genevola ran to the door of the store shouting for help. A crowd gathered. Among those who soon reached the place of the homicide was a Dr. Bondi, a physician of Rochester, and so far as appears entirely disinterested, Detective Cloonin, Officer Barry, and a boy named John Cali. Both Mr. and Mrs. Genevola were conscious, but both failed to identify Montesanto and Faraci as the men who had done the shooting. Mrs. Genevola referred to them consistently as the ‘tall one’ and the ‘short one,’ and she told Dr. Bondi, as he says, that she did not know who they were, but would know them if she saw them again. Detective Cloonin had a talk with her, and he says she did not give the names of the assailants, but said that she would know them if she should see them again, and that she did not know them. Detective Murphy had a similar talk with her the next day. Mrs. Genevola herself denies that the conversation took precisely this form, but she does not assert that she gave the names of the murders, and explains it by stating that the officers did not ask her. Neither did she then mention the defendant or Faraci to her sister or her sister's husband or to other relatives. As to the husband, Dr. Bondi says that upon his arrival he asked the deceased what was the matter. The latter replied, ‘Somebody shot me,’ and stated that he did not know who did it, but that he would be able to recognize him if he saw him again. He said the assailants were two strangers. The boy Cali says that one Sponiola, a brother-in-law of the deceased, who was also present, asked if he knew who had shot him and deceased replied, ‘I do not know the name; if I saw them again I would recognize them.’ This is not denied by Sponiola, although he was present at the trial. The next morning at the hosiptal the deceased was still conscious, but weak. He held up his fingers to indicate that two men had assailed him, but he did not mention their names. The further record as to Mrs. Genevola is still more curious. A coroner's inquest was held on December 20th. She then testified that she saw the faces of the murderers, and could probably identify them at the time, but she did not know if she could identify them when she testified. She knew they were Italians, but she had never seen them before. Further, in a private talk with her brother-in-law, Cologero, after the funeral of the deceased, she told him that two men came into the store, one short and one tall, but she did not attempt to identify Montesanto and Faraci as these two men, although Faraci had ridden to the grave in the same carriage with Cologero. A Mrs. Alberti says she told her also after the arrest of Montesanto that she did not know the men who shot her husband. Four weeks later she did identify them to Cologero; she identified them to the police saying that she had not spoken before because she was afraid and she identified them on the trial of the defendant. There are some indications, however, that she had come to believe that they were connected with the Black Hand letters, and that they knew or could find out who did the shooting. A witness for the defendant testifies, for instance, that the widow told her, referring to Montesanto after his arrest, ‘If he doesn't know it...