People v. Sarzano

• Decision Date: 14 July 1914
• Citation: 212 N.Y. 231,106 N.E. 87
• Parties: PEOPLE v. SARZANO.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 231

106 N.E. 87

PEOPLE

v.SARZANO.

Court of Appeals of New York.

July 14, 1914.

Appeal from Supreme Court, Trial Term, Erie County.

Michael Sarzano was convicted of murder in the first degree, and he appeals. Affirmed.

Thomas Murphy, of Buffalo, for appellant.

Guy B. Moore, of Buffalo, for the People.

PER CURIAM.

The appellant was convicted of the crime of murder in the first degree in Erie county, on February 28, 1913. He shot Saverio Gragnanello November[212 N.Y. 233]17, 1912, at Buffalo. Gragnanello died January 22, 1913, as the result of the shooting, as the jury found.

[1] The trial court erred in receiving in evidence as a dying declaration the statement made by the deceased on November 17, 1912, after he had been taken to the hospital. The statement was made to Dr. George B. Stocker, who was the deputy medical examiner for Erie county. Dr. Stocker told the deceased ‘that his condition was critical, and we expected he would die from the way he was, and we wanted his statement for use later.’ ‘I talked to him and told him the condition he was in and that he was going to die, and I wanted an ante mortem statement for purposes that might arise later.’ The deceased said, ‘All right,’ he would give it, and made statements, which were written down and read to him by Dr. Stocker. The written statement was:

‘Dying declaration of Salvita Greniera made on the 17th day of November, 1912, at Emergency Hospital in the city of Buffalo, county of Erie, to Geo. B. Stocker, deputy medical examiner of said county.

‘He says: I consider my condition critical, and am under the influence of an impression that I am about to die, and have no hopes of my recovery from the effects of my wound. I make this statement under that impression.

‘I live at 164-8 Erie street and am a saloonkeeper by occupation. My wife was in back room of saloon and this man Mike by name and I do not know his last name went back to this room and I went back there and asked him what he wanted and told him to go out. He drew a gun and said he would shoot me. I asked him what he wanted to shoot for and again told him to go out. He immediately shot me five times. Then he ran out of the back door. I never had any trouble with him before. He was not drunk. This was between seven and eight o'clock to-night.

‘Salvitas X mark Greniera.’

The objection to its admission, ‘on the ground there is nothing in evidence except the statement which the doctor wrote that showed he thought he was going to die, and that his death was to be speedy,’ was overruled with an exception.

The learned district attorney seems confident that the statement was admissible. He points out the three wounds; that the deceased was about to undergo an operation; that a doctor told him he was in a critical condition, and they did not expect him to live; and that he stated he was under the influence of an impression or under an impression that he was about to die. The statements of the district attorney must, however, be modified in these particulars: There is no proof that the deceased knew that he was about to undergo an operation, or that the person talking to him was a doctor, or that he stated that he was under the impression that he was about to die. The statement was upon a printed blank, and the only affirmative statements of the deceased it contains are those including and following the words ‘I live at 164-8 Erie street.’ Above those the blanks of the printed form were properly filled, and the entire statement read to him, and he said it was true.

[2][3] The principle upon which dying declarations are received in evidence is that the mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to God upon an oath. The declarations, therefore, of a person dying under such circumstances are considered as equivalent to the evidence of the living witness upon oath. Commonwealth v. Roberts, 108 Mass. 296. Safety in receiving such declarations lies only in the fact that the declarant is so controlled by a belief that his death is certain and imminent that malice, hatred, passion, and other feelings of like nature are overwhelmed and banished by it. The evidence should be clear that the declarations were made under a sense of impending death without any hope of recovery. People v. Conklin, 175 N. Y . 333, 67 N. E. 624. Statements made by a doctor to and accepted by a declarant that there was no change of his recovering are admissible....