People v. Paulo
| Decision Date | 02 February 1923 |
| Citation | 138 N.E. 498,235 N.Y. 39 |
| Parties | PEOPLE v. DE PAULO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Joseph De Paulo was convicted of murder in the first degree, and he appeals.
Reversed, and new trial granted.
Appeal from Supreme Court, Trial Term, Erie County.
Bart J. Shanahan, of Buffalo, for appellant.
Guy B. Moore, Dist. Atty., of Buffalo (Walter F. Hofheins, of Buffalo, of counsel), for the People.
The defendant and one Semione were jointly indicted for the crime of murder in the first degree because, as alleged, they killed one Campagna in the city of Buffalo. The indictment was framed and the case was submitted to the jury upon the twofold theory that the homicide was committed with deliberation and premeditation and also that it was committed while the perpetrators were engaged in the commission of a felony.
The defendant was tried separately, and, without summarizing all of the evidence which was produced against him, we have reached the conclusion that such testimony, although circumstantial, was sufficient to permit the jury to find him guilty of murder in the first degree on either theory, and that therefore the verdict was not against the weight of evidence. We pass directly to the consideration of errors unfortunately committed, which, in our judgment, require a new trial.
[1][2] Over proper objection and exception the district attorney was permitted to prove that on one occasion the defendant and Semione were brought together in the district attorney's office, and that Semione said to the defendant, ‘You killed him,’ referring to Campagna, and to which accusation the defendant immediately replied, ‘You are a liar; you killed him and robbed him.’ Thus the district attorney was permitted to give the unverified statement of one who concededly witnessed the killing, to the effect that defendant took part in the homicide, and which participation the defendant at all times strenuously denied. Under the most elementary rules of evidence this was an error. A statement, made in the presence of another, charging him with responsibility for a given act, and made under such circumstances as enables the party so charged freely to respond, is competent as evidence by way of admission, when the party charged does not deny, but by word or act acquiesces in the truth of the statement. That was not this case at all. The defendant immediately and unequivocally denied the charge made by Semione, and the conversation simply developed into an interchange of countercharges, and the evidence ought not to have been received. People v. Friedman, 205 N. Y. 161, 98 N. E. 471,45 L. R. A. (N. S.) 55.
It is true that in the case cited a similar error was overlooked on the ground that it could not have caused any damage to the defendant. But that is not this case. While, as I have stated, we have reached the conclusion that the evidence made a case for a jury in respect of defendant's guilt, the question of such guilt was debatable before the jury, and it could not be otherwise than that the case against him would be greatly strengthened by this statement of one who was his companion on the occasion of the homicide.
The importance of the error was accentuated by the conduct of the district attorney in summing up the case. He was allowed, in substance, to criticize the defendant for not placing upon the stand Semione, and to state that he, the district attorney, was prevented from putting him upon the stand, and that the law did not allow him to put him upon the stand and compel him to testify. The conversation between the defendant and...
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