People v. Shilitano

• Citation: 218 N.Y. 161,112 N.E. 733
• Parties: PEOPLE v. SHILITANO.
• Decision Date: 09 May 1916
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 161

112 N.E. 733

PEOPLE

v.SHILITANO.

Court of Appeals of New York.

May 9, 1916.

Appeal from Supreme Court, Trial Term, New York County.

Oresto Shilitano was convicted of murder, and from the conviction and an order denying a new trial, he appeals. Affirmed.

Hogan and Hiscock, JJ., dissenting.

Martin W. Littleton, of New York City, for appellant.

Charles A. Perkins, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

SEABURY, J.

The defendant appeals from a judgment entered upon a verdict convicting him of the crime of murder in the first degree and from an order denying a motion for a new trial. In June, 1915, this case was before this court. At that time the alleged newly discovered evidence was in the form of defectively prepared affidavits, and this court suspended its determination until such time as the witnesses making the affidavits referred to could be orally examined and cross-examined. People v. Shilitano, 215 N. Y. 715, 109 N. E. 500. Since that time evidence has been orally taken and considered by the trial judge. The present appeal, therefore, comes before us upon the original record and the supplemental record upon which the motion for a new trial is based. The deceased, for whose murder the defendant was convicted, was a police officer named Heaney. Almost at the same time that Heaney was shot one Rizzo and another police officer named Teare were shot and killed. It is an established fact that these three men were killed by the same hand. It is necessarily to be inferred, and the inference is not disputed, that the killing of the two police officers took place after the murderer had shot and killed Rizzo, and that these officers of the law were shot and killed to prevent their effecting the arrest of the murderer. It is undisputed, also, that these murders occurred on the 3d of May, 1913, at about 11:45 p. m. in front of No. 239 Mulberry street, in the city of New York. The manner in which these homicides were perpetrated attest the deliberation and premeditation which characterized the act of the actor. The only question in dispute relates to the identity of the murderer. The record gives us but little information as to the antecedents of those engaged in this tragedy. The defendant and Rizzo were young Italians residing in Mulberry street. Rizzo was about 22 years of age. The defendant was a young man of about the same age. All that appears in the evidence about his antecedents is that he had a poolroom, was called ‘Paper Box Kid,’ and was the son of Michael Shilitano, who was the owner of several tenement houses in Mulberry street and the landlord of the premises in front of which the murders were committed. The only motive which could have actuated the murderer in killing Officers Heaney and Teare was to avoid arrest. Whether the defendant had any motive to kill Rizzo does not definitely appear from the proof given upon the trial, although in an affidavit made by the witness Sellitto, which was offered in evidence for the purpose of contradicting that witness, it is stated that on the night of the murder the defendant's father was in the poolroom at No. 235 Mulberry street and that Rizzo and Sellitto struck him. In view of testimony to which reference will be made, that immediately before the shooting the father of the defendant gave a revolver to the defendant, this circumstance may afford some justification for an inference of motive. Nellie De Carlo testified that a few minutes before the murder she saw the father of the defendant hand the defendant a revolver. The significance of this testimony is greatly enhanced when we consider that the defendant's father was not called to the witness stand and made no denial of this inculpating fact. The failure of the defendant to call his father to deny this testimony of Nellie De Carlo justified the jury in drawing the inference that the testimony on this subject was true. We start, therefore, with the fact that Rizzo struck the defendant's father in the poolroom, and that shortly thereafter the defendant's father is seen handing a revolver to the defendant. We cannot say that this occurrence referred to in the affidavit of Sellitto was not an adequate motive to have impelled the defendant to the commission of the crime. Whether or not this is so is not of controlling importance, as motive is not an essential element of the crime of murder. It is, however, a suspicious circumstance suggestive of a possible motive for the defendant to have killed Rizzo. Alone it would be unworthy of consideration for any purpose. In connection with the other testimony to which reference will be made, it is at least entitled to the weight which I have indicated I attach to it. It is established by the evidence of Peroto, who worked in the poolroom, that the defendant, his father, and Rizzo were in poolroom shortly before the shooting. The testimony of Peroto on this subject is in no way impeached or contradicted and is corroborated by other witnesses called by the people. Nellie De Carlo testified that she saw the defendant and later his father come from the direction of the poolroom. Sellitto, Verno, Chieffo, and Morelli testified to having seen the defendant there. It is significant that in the testimony upon a motion for a new trial these witnesses do not deny that the defendant, Rizzo, and the father of defendant were in the poolroom a short time before the murder occurred. The father of the defendant was not called to deny the presence of these men in the poolroom at the time. This fact may therefore be deemed as established beyond doubt. Morelli testified that he saw Rizzo upon the street a short distance from the defendant, that he heard a shot and saw Rizzo fall, and that he halped to carry him into the hallway of No. 235 Mulberry street. Morelli was evidently a reluctant witness. He did not testify that he saw the defendant fire the shot, but it is a necessary inference from what he said that the shot was fired by the defendant. Whatever the reason for his apparent reluctance, it is a fair inference from his testimony that if he had been actuated by a desire to make out a case against the defendant he would probably have amplified his testimony. The impression derived from reading his testimony is not that he was attempting to establish a case against the defendant, but rather that he knew more than he told and said what he did with great reluctance. Sellitto testified to having seen the defendant shoot when he was about 10 feet away from Rizzo. On his redirect examination he said that he saw the defendant shooting at the policeman, and saw a revolver in the defendant's hand. He also testified that he saw the defendant shoot the second policeman and observed the defendant running away after the shooting. Verno testified that he saw the defendant draw his revolver and shoot Rizzo. He did not testify to the shooting of the policeman, explaining that he was afraid the bullets might go wild and strike him, and that he ran into the grocery at No. 243. Chieffo testified that he heard a shot, and upon turning around saw Rizzo fall to the ground and saw the defendant running away. He also testified that he saw the defendant shoot Officer Heaney. He did not testify to the shooting of Officer Teare, although he said that he heard other shots. There was also evidence to show that the bullets that killed Rizzo, Heaney, and Teare were 38-caliber bullets, and that all came from the same revolver. I have briefly summarized the evidence given on behalf of the people upon the trial to establish the identity of the defendant as the murderer of these three men. The evidence offered on behalf of the defendant upon the trial was directed entirely to an attempt to impeach the credibility of the witnesses called on behalf of the people. It will be necessary to summarize briefly this impeaching testimony. Guiseppe De Carlo, the father of Nellie, and his son William both contradicted Nellie's statement that she looked out of the window before the shooting. Guiseppe insists that she did not go to the window until after the shooting, and that then she went to the window looking out on Prince street and not to the window looking out on Spring street. If she went to the window after the shooting and not before, it is reasonable to suppose that she would go to that window that would afford her a view of the street from whence the noise of the shooting came, and not to the window from which the occurrence upon the street would not be visible. In addition to this, the uncontradicted testimony and the photograph of the room show that there was a bed between the Prince street window and the interior of the room. Under those circumstances, especially if the testimony of the father is true that his two boys William and Frank were then in this bed, it would seem to have been impossible for Nellie to have looked out of that window. it is not without significance also that the son Frank, who is said to have been in this bed at this time, was not called as a witness upon the trial. Nellie De Carlo testified that when her father learned that she had told the detectives of what she saw on the night of the murder he commanded her to say nothing to any person on the subject. Rosie Mento, a tenant of the defendant's father and janitress of one of the houses owned by the defendant's father, and Judith Amato, a tenant of the defendant's father, both testified that Nellie volunteered the statement to them that the police wished her to be a witness, but that she knew nothing about the defendant. Pepe testified that he met Nellie a day or two after the shooting, and that she told him to tell his nephew Gambardella that she saw nothing of the occurrence. Suspicion was sought to be cast upon Morelli's testimony because although he was himself arrested on the night of the murder, he did not tell the police about the matter until ...