People v. Tunstall

• Decision Date: 19 March 1958
• Citation: 171 N.Y.S.2d 666,5 A.D.2d 338
• Parties: The PEOPLE of the State of New York, Respondent, v. Moses TUNSTALL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 666

171 N.Y.S.2d 666

5 A.D.2d 338

The PEOPLE of the State of New York, Respondent, v. Moses TUNSTALL, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 19, 1958.

John M. Wilson, Palmyra, for defendant-appellant.

Roger E. Davis, Dist. Atty., for Wayne County, Lyons, for respondent.

Before McCURN, P. J., and WILLIAMS, BASTOW, GOLDMAN and HALPERN, JJ.

WILLIAMS, Justice.

In this first degree murder case, the jury reported a verdict of guilty with a recommendation of life imprisonment, and the defendant was sentenced for life.

The defendant claims, among other things, that the evidence was insufficient to sustain the conviction. We shall consider this first.

The evidence was wholly circumstantial and must therefore be analyzed and considered under the long-established rule set forth in People v. Taddio, 292 N.Y. 488, 489, 55 N.E.2d 749, 750:

'Concededly the defendant's conviction rests upon circumstantial evidence--a process of decision by which a court or jury may reason from circumstances which are known or proved, to establish by inference the reality of the principal fact. If in a criminal case circumstantial evidence is to be given legal effect the facts from which the inference of guilt is drawn must themselves be proved, not assumed; the controlling inference must be clear and strong, pointing logically to defendant's guilt and excluding to a moral certainty every other reasonable hypothesis. People v. Kennedy, 32 N.Y. 141, 145, 146; People v Harris, 136 N.Y. 423, 429, 33 N.E. 65, 67; People v. Fitzgerald, 156 N.Y. 253, 258, 50 N.E. 846, 847; People v. Razezicz, 206 N.Y. 249, 269, 270, 99 N.E. 557, 564; People v. Galbo, 218 N.Y. 283, 293, 294, 112 N.E. 1041, 1045, 2 A.L.R. 1220; People v. Lewis, 275 N.Y. 33, 39, 9 N.E.2d 765, 768; People v. Suffern, 267 N.Y. 115, 127, 195 N.E. 816, 820; People v. Weiss, 290 N.Y. 160, 163, 48 N.E.2d 306, 307; People v. May, 290 N.Y. 369, 373, 49 N.E.2d 486, 488.'

This same rule was re-stated in slightly different language in People v. Leyra, 1 N.Y.2d 199, 206, 151 N.Y.S.2d 658, 662:

'As this resume demonstrates, the evidence relied upon to spell out guilt is entirely circumstantial. According to the well-settled principles applicable to such evidence, its sufficiency depends upon 'whether the proof points logically to defendant's guilt and excludes to a moral certainty, every other reasonable hypothesis'. People v. Harris, 306 N.Y. 345, 351, 118 N.E.2d 470, 473; see, also, e. g., People v. May, 290 N.Y. 369, 375, 49 N.E.2d 486, 489; People v. Lewis, 275 N.Y. 33, 39, 9 N.E.2d 765, 768. Moreover, 'the facts from which the inferences are to be drawn must be established by direct proof: the inferences may not be based upon conjecture, supposition, suggestion, speculation or upon other inferences'. People v. Weiss, 290 N.Y. 160, 163, 48 N.E.2d 306, 307; see, also, e. g., People v. Taddio, 292 N.Y. 488, 489, 55 N.E.2d 749; People v. Woltering, 275 N.Y. 51, 59, 9 N.E.2d 774, 776; People v. Razezicz, 206 N.Y. 249, 269-270, 99 N.E. 557, 564.'

The body of the victim, a 75 year old man named Williams, was found at about noon on December 5, 1956 on the floor of his country home in the Town of Walworth, Wayne County, New York. It contained 14 knife wounds and slashes. There was evidence of a struggle. It is conceded that the deceased was a homicide victim. Defendant was a Negro farm worker who had decided to start south that day and was in the process of traveling toward Rochester, New York, at the time he was arrested.

The only testimony that tends in any way to place the defendant in the vicinity of the crime at the time of its occurrence was that of a neighbor who lived next to the Williams house about one-eighth of a mile away. He testified that on the day in question at about 11:35 to 11:40 A.M. he saw a car pass his house with a lone occupant, a colored man, driving toward the deceased's house at about 25 miles an hour. He said he saw this car from a distance of about 60 to 70 feet for a space of about 40 feet or for approximately one second. He identified an uncolored photograph of the defendant's car as a photograph of the car that passed his house. He did not know the driver nor did he ever identify him as the defendant. He was not sure of the color of the car. He thought it was a light gray or light green; actually it was green. He said that the only reason he noticed the car at all was because a man who had lived with him drove a car of the same color and the driver 'sat * * * very erect' and the fenders were jammed and rusty. At one time he said that there was 'plenty' of traffic on that road and that he had no particular reason to notice it; 'It was just another car.' He said his only means of identification were the marks on the fender. The photograph showed a car with a damaged and rusted right rear fender, but in the rural community in which this event occurred there were probably many cars similarly damaged and rusted and of the same general appearance. Nevertheless, he positively identified the photograph. The witness had known the decedent for about 25 years and they had been good friends. This testimony was a very important link in the chain of evidence necessary to convict this defendant. It is significant that the State Police Officer who made the arrest and had the car under observation and control for 15 or 20 minutes, could not tell whether the same photograph was one of the defendant's car.

The identification only by the marks on the fender of a car in which the witness had no special interest, on a heavily traveled road and which was under his observation for a period of about one second at a distance of 60 or 70 feet is highly dubious and not at all impressive or persuasive. In our opinion it has very little probative force and the very positive identification was undoubtedly influenced by the friendship of the witness and the deceased and motivated to some extent at least by a desire to be helpful in the establishment of guilt.

When the defendant was arrested he was carrying a straight knife with a blade about four inches long and about three quarters of an inch wide at the top and tapering to a sharp point at the end. One witness described it as a 'regular kitchen knife,' but obviously it had been sharpened. There is no doubt that the wounds could have been inflicted by this knife. However, there was nothing unique about the knife so that the mere fact that it could have inflicted the wounds was not of special importance. It was important however that the People produced testimony that human blood had been scraped from the blade of the knife after the arrest. The evidence of the State in this respect was neither satisfactory nor convincing. A member of the State Police Department who had some chemical training was produced and testified that the knife was stained by human blood. On cross-examination he was vacillating, uncertain and showed a lack of fundamental knowledge of chemistry in general and of the conducted tests in particular. He was not sure that one of the determinative reactions on one of the tests would permit a differentiation between certain other excretions of a body than it would to blood. As to the test to determine whether the blood was human, he at first indicated that he knew the composition and technique of manufacturing the anti-human serum utilized in the test but then admitted that although he was present he did not know how to produce it and was inexpert in its composition and manufacture. His testimony was extremely weak as to controls used, if any, in determining the validity of the significant reactions. It was only after prolonged argument that he was permitted to voice the opinion that the scrapings from the blade contained human blood, but his opinion was most unsatisfactory and left much to doubt. Even if we assume that his tests were clear and properly conducted and that there was human blood on the knife, the establishment of that fact alone is far from sufficient to establish that the blood was that of the deceased. No samples of the blood of the deceased were taken or typed although it was readily available both at the scene of the crime and upon subsequent pathological examination. The result was that there could be no comparison of the grouping of the blood on the knife and the blood of the deceased. A sweater jacket saturated with blood was taken from the deceased's body but no evidence whatsoever of tests thereon was presented nor was it used for the purposes of control in the tests that were actually made from the blade of the knife and from clothing worn by the defendant at the time of his arrest. Blood stains on defendant's clothing, if any, could well have been caused by a previous incident during which the defendant's clothes were stained with his own blood.

It was also claimed by the State Police that a heel mark discovered in the back of the Williams house leading toward the driveway fitted one of defendant's shoes. The mark was found about 1:00 P.M. and was distinct as late as 8:00 P.M., at which time the State's expert compared it with defendant's shoe. This expert was also present on at least one other occasion during the afternoon. He stated that he did not have the necessary testing materials with him and that the print was destroyed by the elements the night of the homicide. Nevertheless, the fact remains that no cast was made although the mark was clear for at least seven hours.

It is claimed by the prosecution that the defendant was without money and wanted to go south and that he robbed and murdered the deceased to procure the necessary money, but the testimony concerning his financial condition was neither clear nor convincing as to whether he had money or not. The prosecution lays great stress upon the fact that on December 4th he told a friend that he wanted to go south, that he had no money and that he would 'stick up' or kill...