People v. Mummiani

• Decision Date: 09 February 1932
• Citation: 180 N.E. 94,258 N.Y. 394
• Parties: PEOPLE v. MUMMIANI.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 394

180 N.E. 94

PEOPLE

v.MUMMIANI.

Court of Appeals of New York.

Feb. 9, 1932.

Vincent Mummiani, by a judgment of the Court of General Sessions, New York County, was convicted of murder in the first degree, and he appeals.

Reversed, and a new trial ordered.

O'BRIEN, KELLOGG, and HUBBS, JJ., dissenting.

Appeal from Court of General Sessions, New York County.

Michael F. Pinto, Samuel Backlar, and John A. Mullen, all of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

LEHMAN, J.

On September 9, 1930, Dominick Buoncore was shot in a restaurant in the borough of Manhattan, city of New York. His assailant escaped. Before his death Buoncore made a statement which was admitted in evidence as his dying declaration. The police officers, who wrote out the statement for the dying man to authenticate by his mark, understood him to say that he had been shot by ‘Moriano.’ He added, ‘See Patsy Cherry.’ It is quite possible that the dying man may have mumbled the name and that he may have said ‘Mummiani’ when he was understood to say ‘Moriano.’ At any rate, it is Mummiani who has been convicted of the crime.

He was arrested on the evening of February 9, 1931. He was taken to the police station. He was detained there for thirty-six hours, in defiance of a statute, before he was arraigned in court. By section 165 of the Code of Criminal Procedure, ‘the defendant must in all cases be taken before the magistrate without unnecessary dalay.’ This was a plain wrong for which some one should be punished. Disregard of the duty of arraignment does not avail, however, without more to invalidate an intermediate confession. People v. Trybus, 219 N. Y. 18, 113 N. E. 538;People v. Doran, 246 N. Y. 409, 159 N. E. 379. It is only a circumstance to be weighed with others in determining whether a confession has any testimonial value.

The defendant, during his unlawful detention, was questioned by police officers. He denied guilt. Five police officers were present at his questioning. They testify that he was not beaten but that, at about 11 o'clock in the morning after his arrest, he stated that he would tell the truth if they would give him some food. They gave him the coffee for which he asked. Then, in the presence of a stenographer, he made a detailed confession that he had committed the crime. He repeated that confession with some unimportant variations before an assistant district attorney the same afternoon. At the trial he testified that before he made the confession of guilt he was brutally beaten by the police officers, and that the confession was made under the influence of fear, produced by threats to continue the beating until he confessed. He says that the words of the confession were put into his mouth by the police officers. It is upon that confession that the conviction of the defendant rests.

No witness gave any testimony which tends, independently of the confession, to show that this defendant is in fact the guilty man whom the decedent intended to identify when he was understood to say that he was shot by ‘Moriano. See Patsy Cherry.’ Patsy Cherry was identified at the trial as one Patsy Cerosuolo. He had been sitting with the decedent at the restaurant a short time before the shooting. He was acquainted with both the defendant and the decedent. He was in or just outside the restaurant at the time of the shooting. It was said in the opening address of the prosecuting attorney that he would testify as to the circumstances. Perhaps he could throw some light on the crime. He was, we are told, in court. He was not produced as a witness.

Nevertheless it cannot be said that the conviction of the defendant is against the weight of evidence, if the confessions be thrown into the scales against the defendant. The confessions contain within themselves some indications of their truth. A narrative so circumstantial cannot easily be reconciled with the defendant's present story that it was an utter fabrication. A multitude of extrinsic circumstances not sufficient of themselves to establish the defendant's guilt bring the confessions into accord with probability. The real question in this case is whether the confessions were obtained by means forbidden by the law which so pulverize their testimonial value that coherences internal or extrinsic would thereafter count for nothing.

A confession by a defendant can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor. Code Cr. Proc. § 395; cf. 2 Wigmore on Evidence, §§ 823, 831, and cases there cited. Other forms of pressure, not amounting to a threat, may be considered by the jurors in determining whether the confession is true or false. They do not impose a duty on the jurors to throw the confession out if they find it to be true. Whatever the rule may be in other jurisdictions (Bram v. United States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568), our law does not require that a confession to be admissible shall be a spontaneous utterance made by a defendant to relieve his conscience. Only where the confession is made under the influence of fear produced by threats is it inadmissible. Then it loses all testimonial value, for so the statute has ordained.

Our study of the record leaves us with a grave fear that the confessions were obtained in violation of the statute, by brutality and threats. True, if the testimony of the prosecution might reasonably be accepted by the appointed triers of the fact, we may not because of our fears substitute our judgment for theirs. We do not say that the jury could not, upon this record, reasonably credit the denial by the police that they had not beaten the defendant to obtain his confession rather than the assertion of the defendant that he was beaten. Nevertheless, the question remains whether there has been a fair trial of this issue at which the prosecution has presented testimony which would enable the triers of the fact to determine that issue fairly and truly.

Since that is the ultimate question presented upon this appeal, there is no need to analyze the testimony pro and con to determine its weight. Enough to point out that there is a basis for our grave fears, and that the issue has not been presented to the jury in a manner which might allay those fears. Where a defendant has given a detailed confession, he knows that he can escape its effect only by testimony, true or false, that it was extorted from him through fear induced by threats. Only a false sentimentality would lead to giving greater weight to his highly interested assertion than to the denial of the police officers who have no interest except to see that crime is prevented or the wrongdoer punished. On the other hand, no false sentimentality towards the police, however brave and zealous they may be, should lead us to condone disregard of the law by its sworn protectors or to give testimonial value to a confession which under the law has no such worth.

Here, though the assertion of the defendant that he was beaten is met by denial of the police officers who are accused of the brutality and threats, they do not deny that they held the defendant unlawfully without arraignment for thirty-six hours until they had obtained his confession. They admit that, while they unlawfully held the defendant in the police station, one of them gave the defendant a clean shirt in place of one which the defendant claims was made bloody by alleged beating and a blow on the nose. They admit that, if this gift was made in a spirit of charity, the same spirit did not induce them to furnish the defendant with any food until he promised to give a statement, ‘if you get me some food.’ They content themselves with a bare denial of violence, giving no details or explanation of why they held him unlawfully or what occurred before he gave the confession or what induced a change by the defendant from stout assertion of innocence to confessions of guilt, nor do they explain why the presence of five police officers was required to induce a ‘voluntary’ confession.

The growing number of instances in which officers of the police force stand accused at our bar of threats and brutality in the extortion of confessions is a cause of deep concern to all the judges of the court. We feel it a solemn duty, irrespective of the outcome of this cause, to remind the officers of the law that the suspicion now attaching to them has been fostered by their own conduct, at times by abuse of power, not amounting in itself to violence or coercion, but furnishing the soil out of which violence and coercion spring, at times by sheer indifference, a cynical refusal to inquire where relentless pressure of the probe would be likely to reveal to much.

The police are guilty of oppression and neglect of duty when they willfully detain a prisoner without arraigning him before a magistrate within a reasonable time. Code Cr. Proc. § 165. The conclusion is inescapable that they do this for the purpose of subjecting him to an inquisition impossible thereafter. Until arraignment before a magistrate, he is held incommunicado, without the protection that comes from the advice of counsel or the encouragement derived from the presence of family or friends. After arraignment, he has these and other helps to fortitude. In a vast majority of the cases that have come before this court with a defense that a confession was illegally extorted, perhaps, indeed, in all, the wrong, if there was any, was done before the prisoner was brought to court, and would probably have been prevented if he had been brought there without delay. Cf. Lawlessness in Law Enforcement, vol. IV of the Reports of the National Commission on Law Observance and Enforcement, June, 1931.

The willful violation by the police of the...