People v. Raffo

• Decision Date: 21 February 1905
• Citation: 73 N.E. 225,180 N.Y. 434
• Parties: PEOPLE v. RAFFO.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 434

73 N.E. 225

PEOPLE

v.RAFFO.

Court of Appeals of New York.

Feb. 21, 1905.

Appeal from Supreme Court, Trial Term, Westchester County.

Francesco Raffo was convicted of murder in the first degree, and appeals. Reversed.

William Temple Emmet, Grenville T. Emmet, and George C. Andrews, for appellant.

J. Addison Young, for the People.

WERNER, J.

The defendant appeals from a judgment convicting him of the crime of murder in the first degree. Many questions are urged upon us by his faithful and zealous counsel, as presenting grounds of error for which the judgment should be reversed; but, after mature reflection, we think there is only one question that needs to be discussed, and that is whether the evidence warrants a conviction of murder in the first degree. That is a serious and delicate question, upon which, after considering the case from every point of view, we feel constrained to differ with the learned trial court. In doing so, however, we desire to express our unqualified approval of the general conduct of the trial by the learned court and the district attorney, whose commendable fairness and impartiality are evinced upon every page of the record. The pertinent facts bearing upon the question whether the defendant, who was the conceded perpetrator of a homicide, should have been found guilty of murder in the first degree, or of some lesser degree, are as follows:

Shortly after midnight on the 20th day of June, 1903, the defendant, Raffo, shot and killed one Ahearn in what is known as ‘Rochelle Park,’ in the city of New Rochelle, Westchester county. There is no dispute as to the shooting and killing, both of these facts being admitted by the defendant. Upon the trial the issue upon the merits was whether the homicide was justifiable, the defendant claiming to have acted in self-defense. There are only two living eyewitnesses to the homicide. The first is Dr. Johnson, who testified for the prosecution, and the other is the defendant, who testified in his own behalf. Before adverting to the conflicting stories told by these two witnesses, and upon which the whole case turns, it will be useful to refer to a few of the surrounding facts and circumstances.

The defendant, Raffo, is an Italian, who at the time of the homicide was 26 years of age, and had then been in this country 6 or 7 years. During the greater part of that period he had lived and worked in and about New Rochelle. At the time of the homicide he was employed in a marble quarry at Tuckahoe, which is about six miles from New Rochelle, and he boarded near by. He had become engaged to an Italian girl named Valardina Sheraffo, who lived in the family of one De Pippo, residing at 99 Oak street, in New Rochelle. In anticipation of the marriage, which was to take place on the Sunday following the homicide, Raffo had rented a room in a house adjoining that of De Pippo, and had purchased furniture and other necessaries for housekeeping. At the close of his day's work on Friday, June 19th, he left Tuckahoe, and went to 99 Oak street, in New Rochelle, where he passed the evening with his betrothed and the De Pippo family. He left there shortly after 10 o'clock in the evening, intending to return to Tuckahoe. On his way, he passed the premises of Siebrecht and Archer, who lived on the outskirts of New Rochelle, adjoining each other. Siebrecht, for whom Raffo had worked at one time, had an extensive florist's establishment, and Archer was engaged in the business of raising chickens. Raffo went upon the Siebrecht premises, took therefrom about 200 cut carnations, a jardinière, and some material known as ‘raffia,’ used in tying flowers. He then proceeded to the Archer premises, entered the stable, emptied a bag containing some crushed corn, and then went into the adjoining henhouse, where he killed three chickens. The chickens, jardinière, flowers, and raffia were placed in the bag, and, with this thrown over his right shoulder, and an empty pail in his left hand, he retraced his steps towards 99 Oak street, instead of continuing his journey to Tuckahoe. He arrived in Rochelle Park shortly after midnight, where he encountered Ahearn, his victim. Ahearn was a watchman employed by the residents of Rochelle Park to patrol their premises, and had been sworn in as a special policeman under an ordinance of the city, but was clad in citizen's dress. The differing narrations of what transpired when these two men met can best be told in the language of Dr. Johnson, for the prosecution, and of the defendant in his own behalf.

Dr. Johnson, a dentist, practicing in New York City, was residing temporarily in the Hawkins House, in Rochelle Park. This was 147 feet distant from, and directly in line with, the lamp-post where Raffo and Ahearn met. Johnson had been to the city to get some medicine for a Miss Hawkins, who was ill. Upon his return he retired, and was not yet fully asleep when he was aroused by the barking of a dog and loud talking. He did not arise at once, but, as the barking and talking continued, he went to a window overlooking the park, and, under the gaslight in the roadway, he saw two men. One was a large man, and facing him, within two or three feet, was a small man. Johnson heard the large man say, ‘What have you in that bag?’ To which the smaller man replied, ‘What the hella for?’ ‘This was repeated several times, when the large man became angry and said: ‘I want to know. I am the watchman here, and I must know what is in that bag. No more of your damn nonsense. Show me what is in that bag, or I will take you to the lockup,’ or ‘I will jug you.’ After he had said, ‘No more of your damn nonsense,’ he sort of reached out with his left hand and struck the small man over the head with his right hand. He struck him two or three times, and then the small man dropped his bag, and they clinched. They surged forward and backward under this lamp over a surface of 20 or 25 feet, and after the small man appeared to be getting the better of the scuffle there was a shot. Just before this shot the large man cried out, ‘For Christ's sake, don't kill me!’ and immediately following the shot he yelled out ‘Murder!’ or ‘Help!’ After the exclamation, ‘For Christ's sake, don't kill me!’ and the shot which followed, they surged a little while, and then there were two other shots in quick succession. The whole thing did not take the fraction of a minute. During all this time they were under the lamp-post, sort of circling around, and then they backed up to the grass. When they got on the grass, which is the other side of the lamp on Joseph T. Brown's property, they both fell on the ground. The smaller man disentangled himself, stood up for a moment, and kind of backed or stepped away from the body lying on the ground. Then he turned, stepped back to the man lying on the ground, and fired two more shots at him. He was talking or muttering, and I did not understand all he said, but I understood him to say that he would show him what was in the bag. That is the substance of it.' On cross-examination, Johnson stated that the larger man struck the smaller man two or three times with a club, and struck him very hard-so hard that it sounded like hitting water with a shingle. He further stated that, until the two grappled, the larger man appeared to be the aggressor in the fight. Still further on in his cross-examination he stated that at one stage of the fight he saw the larger man trying to get his hand into his hip pocket, but he could not tell whether it was before any shots had been fired.

The defendant's version of the affray is materially different. He testified: ‘As I was going down the park I saw a man come out from back of the bushes with a revolver in one hand and a stick in the other. He told me to stop there, and came close to me with the revolver up to my face. He told me to stop there, and I stopped. I had the pail in one hand, and the bag over my shoulder with the other hand. He said to me ‘That is not the way to go through;’ and I said, ‘I have been through before, and no one has stopped me;’ and, then I asked him what I can do, ‘I have got so far, I am here;’ and he said, ‘You have got to go back;’ and I said, ‘All right.’ While I was starting to go back he put his pistol in his pocket, and then struck me over the head with a stick. He rapped me twice on the head, and then I left my pail and bag on the ground and went for him. Then he repeated it over again, and struck me with the stick. We grappled and went down. At one time I was on top. At another time he was on top. When he hit me with the club he cut my head, and the blood ran all over my face and blinded me. Then he put his hands to my throat and nearly choked...