People v. De Simone

Decision Date07 January 1919
Citation225 N.Y. 261,121 N.E. 761
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, First Department.

Attilio De Simone was convicted of murder in the second degree. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (181 App. Div. 840,168 N. Y. Supp. 976), affirming the conviction, he appeals. Affirmed.

Frank Moss and Isidor Wels, both of New York City, for appellant.

Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.


The defendant was convicted by the verdict of a jury of murder in the second degree, in that he shot and killed Alexander Della Rosa. The judgment of conviction was affirmed by the nonunanimous decision of the Appellate Division. Because the decision of the Appellate Division was not unanimous, we must examine the record presented to us to ascertain as a question of law whether there is evidence tending to support the verdict. People v. Smith, 162 N. Y. 520, 56 N. E. 1001. We must, additionally, ascertain whether any alleged error raised by an exception at the trial has validity. People v. Grossman, 168 N. Y. 47, 60 N. E. 1050;People v. Sherlock, 166 N. Y. 180, 59 N. E. 830.

It is manifest in an examination of the record that there was evidence from which the jury were justified in finding the defendant guilty of the crime of which he was convicted. That conclusion is not, and could not be, seriously combated by the briefs and argument of his counsel. He does, however, urge before us several alleged errors. We have concluded that one only of them merits discussion in an opinion, the facts relative to which are: The shooting occurred on July 25, 1916, at about 7 o'clock and 15 minutes in the afternoon on the west side of Thompson street in the city of New York. Thompson street runs north and south. At the distance of about 80 feet south from the place of the shooting, Thompson street is intersected by West Houston street, running east and west. The people had as a witness in their behalf Charles R. Harson, who testified: At the time of the shooting he was a police officer on duty on Thompson street, while standing on the east side of that street at a point about 75 feet south of West Houston street, he heard the firing of five or six shots at a point on the west side of Thompson street and north of West Houston street; he immediately ran to the north, crossing Thompson street from the east to the west side diagonally as he ran; in crossing a wagon in front of him barred his view of Thompson street to the north; as he, having crossed West Houston street, was at a point on the west side of Thompson street about 10 feet north of the northwest corner of those streets, somebody in the crowd hollered, He ran over Houston street;’ he immediately turned and looked over West Houston street and saw, for the first time, about 25 feet from that corner and running westerly in that street, the defendant, whom he pursued; he did not notice, at that time, any one else running westerly on that street; when he reached the defendant, another officer had stopped him; he found upon the ground near the defendant the pistol which was introduced in evidence. When, in giving his testimony, he had said that ‘somebody in the crowd hollered,’ the defendant's counsel objected to his stating what was said ‘as incompetent, irrelevant, and immaterial, hearsay in the absence of this defendant, and not binding on the defendant.’ The court overruled the objection, stating:

‘I think it may be stated that he heard shots and ran. I think it is part of the res gestae.’

The defendant excepted to the ruling.

[1] We have concluded that the testimony thus objected to was competent, not as of the res gestae, but as a part of the relevant explanation and description of the acts of the witness.

The testimony is manifestly hearsay. The main or principal transaction being investigated and adjudged, through and by virtue of the trial, was the shooting, the circumstances and conditions attendant upon or surrounding it, and was it done by the defendant under those circumstances and conditions? In the investigation, deeds and statements of the participants in the transaction, or of observers of it, which accompanied, emanated from, and were a part of it, could be detailed by witnesses who saw or heard them. Deeds and acts which explain, describe, or characterize the transaction as an accomplished act are to be distinguished from those which are a part of it and are forced or brought into utterance or existence by and in the evolution of the transaction itself, and which stand in immediate causal relation to it. The former are hearsay and not competent as evidence; the latter are of the res gestae and are relevant and competent. in these cases the statements of observers of the criminal act have been held incompetent as not of the res gestae: Flynn v. State, 43 Ark. 289;State v. Oliver, 39 La. Ann. 470, 2 South. 194;State v. Bellard, 50 La. Ann. 594, 23 South. 504,69 Am. St. Rep. 461;State v. Riley, 42 La. Ann. 995, 8 South. 469;Ganaway v. Salt Lake Dramatic Ass'n, 17 Utah, 37, 53 Pac. 830;State v. Walker, 78 Mo. 380;Stroud v. Commonwealth, 19 S. W. 976, 14 Ky. Law Rep. 179. In these cases the...

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    • United States
    • Missouri Supreme Court
    • June 24, 1933
    ... ... When ... he does make such statements the court should give a ... cautionary instruction. People v. Luberto, 209 ... N.Y.S. 544, 212 A.D. 691; Shacklett v. State, 211 P ... 1063, 23 Okla. Cr. 4; State v. Olivieri, 236 P ... 1100, 49 ... ...
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    • Missouri Supreme Court
    • June 24, 1933
    ...544, 212 App. Div. 691; Shacklett v. State, 211 Pac. 1063, 23 Okla. Cr. 4; State v. Olivieri, 236 Pac. 1100, 49 Nev. 75; People v. Desimons, 225 N.Y. 261, 121 N.E. 761; Choate v. Commonwealth, 196 S.W. 1060, 176 Ky. 427; People v. Rogers, 136 N.E. 470, 303 Ill. 578; Nichanin v. United State......
  • State v. Rotolo
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    • October 9, 1928
    ...purpose of proving the fact that a certain statement, request, or message was made, or delivered, or acted upon." In People v. De Simone, 225 N.Y. 261, 121 N.E. 761, where policeman testified that he started in the direction where he heard shots fired and that a wagon barred his view of the......
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