People v. Semione
| Decision Date | 02 February 1923 |
| Citation | 235 N.Y. 44,138 N.E. 500 |
| Parties | PEOPLE v. SEMIONE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Emilio Semione was convicted of murder in the first degree, and he appeals.
Affirmed.
See, also, 235 N. Y. 39, 138 N. E. 498.
Appeal from Supreme Court, Trial Term, Erie County.
John S. Knibloe, of Buffalo, for appellant.
Guy B. Moore, Dist. Atty., of Buffalo (Walter F. Hofheins, of Buffalo, of counsel), for the People.
The defendant, Emilio Semione, was indicted with Joseph De Paulo for the murder of Luigi Campagna.
In a judgment handed down herewith, we are reversing the conviction of De Paulo for error in the admission of evidence as well as upon other grounds. The district attorney was there permitted to show, upon objection and exception, that when Semione and De Paulo were brought together shortly after the homicide, each charged the other with the commission of the crime. The significance of this testimony was greatly emphasized by the use which the district attorney made of it in his summing up to the jury. The effect was to make Semione a witness for the people without putting him on the stand or subjecting him to cross-examination at the hands of counsel for De Paulo.
In the case at bar the same conversation is in evidence, but the record has other elements of difference which satisfy us that the judgment ought not to be disturbed. We reach that conclusion upon the following grounds:
1. The testimony in this case, unlike the testimony in the case against De Paulo, was received without objection or exception. During the progress of the trial the court called attention to that fact. Even then, there was no motion to strike out the testimony or to direct the jury to disregard it. Conceivably the defendant thought that charges and countercharges would involve the jury in bewilderment, and inject into the case an element of doubt which might inure to his advantage. Whatever his motive, he was silent when he should have spoken. In such circumstances, the presence in the record of testimony, which, if challenged, should have been excluded as incompetent, does not vitiate the judgment. The court will not exercise its discretionary power to disregard the absence of objection unless on the whole case there is a reasonable basis for the fear that injustice has been done. People v. Driscoll, 107 N. Y. 414, 14 N. E. 305;People v. Leonardi, 143 N. Y. 360, 38 N. E. 372.
[3] 2. The conversation, even if incompetent at the time of its admission, became competent thereafter as part of the defendant's cross-examination when, in substance, it was repeated. De Paulo did not take the stand. The defendant, Semione, did. At the time of his arrest, when found drenched in blood, he made a written statement that he had been set upon by robbers. Later he retracted...
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Simpson v. Bell
..., 982 F.2d at 800, if it was persuaded that "there is a reasonable basis for the fear that injustice has been done," People v. Semione , 235 N.Y. 44, 46, 138 N.E. 500 (1923), the recognized standard for invoking interest-of-justice jurisdiction. Yet it chose not to. Indeed, the Second Depar......
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State v. Hudon.
...the absence of objections unless on the whole case there is a reasonable basis for the fear that injustice has been done. People v. Semione, 235 N.Y. 44, 138 N.E. 500; People v. Emieleta, 238 N.Y. 158, 144 N.E. 487; People v. Odell, 230 N.Y. 481, 130 N.E. 619; State v. Cary, 124 Kan. 219, 2......
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People v. Pacheco
...of the right to object. People v. Ramistella, 306 N.Y. 379, 118 N.E.2d 566 (1954), reversing 282 App.Div. 723 (1953); People v. Semione, 235 N.Y. 44, 138 N.E. 500 (1923); Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991 (1892); Parkhurst v. Berdell, 110 N.Y. 386, 18 N.E. 123......
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People v. Miller
...approval of his counsel till the verdict had been announced. We are satisfied that justice does not require a new trial. People v. Semione, 235 N. Y. 44, 138 N. E. 500. (4) The judge instructed the jury that they were to approach the consideration of the evidence with a presumption that Gla......