People v. Del Vermo

Decision Date29 September 1908
Citation192 N.Y. 470,85 N.E. 690
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Trial Term, Oneida County.

Andrea Del Vermo was convicted of murder in the first degree, and he appeals. Affirmed.

Cullen, C. J., dissenting in part.

John E. Mason, for appellant.

Emerson M. Willis, Dist. Atty., for the People.


The indictment in this case charged the defendant with the crime of murder in the first degree, committed at the city of Rome, in Oneida county, on the 30th day of June, 1906, upon the body of one Tony Page by means of a knife, with which a fatal stab wound was inflicted in the abdomen, causing the death of the victim on the following day. The defendant pleaded not guilty and testified as a witness in his own behalf, denying the infliction by him of any stab wound whatever upon the body of the deceased, and giving evidence which, if it had been believed by the jury, would have led them to the conclusion that the injury which caused the death of Tony Page was self-inflicted by means of a knife with which Page had endeavored to assault the defendant.

The defendant and the deceased were Italian laborers residing in the city of Rome: the defendant being about 24 years of age, and the deceased 36 years old. They were acquaintances, and early on the evening of the 30th of June, 1906, met in a liquor saloon occupied by Daniel Page, a brother of the deceased. There they participated to some extent with other Italian acquaintances in a number of games of cards. It seems that as the result of each game the winner was denominated the ‘boss' of the game and became entitled to take such glasses of beer or sherry or such cigars as might constitute the stake. These he was at liberty to appropriate wholly to himself, or he might share them with the other players if so disposed. When a game of this sort was going on an outsider who had not shared in the play might be permitted to come in by paying five cents, and he thereby became equally entitled with the players to take the winnings, if thus favored by the turn of the cards. On the evening in question four men, Canio Sabia, Paul Telesco, Joseph Bochicecheo, and Tony Page, were engaged in playing this game in Daniel Page's saloon. While the first game was being played the defendant came in and ‘chipped in a nickel.’ Sabia was the winner, and drank all the beer himself, except one glass, which he gave to Telesco. The defendant participated in the same way in the two following games, one of which he won, while Tony Page was the winner of the other. When the defendant won he omitted to offer Tony Page any of the beer which was served, whereupon Tony Page imitated his example in the succeeding game, and the defendant said to him: ‘Why didn't you give me a drink? You have got to respect me.’ Tony Page responded: ‘Well, you left me dry before. I will let you go dry this time.’ Evidence as to this occurrence was introduced by the prosecution to show that bad feeling had arisen between the defendant and the deceased before the tragedy. There was proof also that Bochicecheo, a youth of 19, who was a nephew of the wife of Daniel Page, the keeper of the saloon, had engaged in an altercation with the defendant during one of these games of cards. Bochicecheo had objected to the participation of the defendant, declaring that he did not want him in the game any more, and, when the defendant asked him why, he had answered: ‘Because you are going to get in trouble with Tony.’ The defendant thereupon invited Bochicecheo to go out into the street and settle the controversy, when Mrs. Page appeared and composed the difficulty for the time being. The defendant, with Sabia and Paul Telesco, left the saloon at about 10 o'clock. Bochicecheo remained 15 or 20 minutes longer and then went out. He and the defendant were the only persons present at the time when Tony Page received his death wound, and the case for the people, therefore, depended largely upon the testimony of Bochicecheo.

According to Bochicecheo's statement he was walking homeward along Dominick street about a quarter of an hour after he left the saloon, when he encountered the defendant standing on the front steps of a bakery. Bochicecheo did not speak to the defendant, but went straight by him. After he had gone about 25 feet the defendant called out: ‘Joe, wait a minute.’ Bochicecheo inquired of the defendant what he wanted, and the defendant answered: ‘I am going to give you this to-night’-and approached with a knife in his hand, adding: ‘I am going to kill you to-night.’ As the defendant approached, Bochicecheo drew a revolver and exclaimed: ‘You son of a gun, you had better go home and go to bed if you want to kill me! If you kill me, I have got nobody. If I kill you, I have got a brother and a sister.’ These remarks appear to have quieted the defendant, who responded: ‘That is all right. I have drank a little to-night’-and he thereupon shut his knife and put it in his pocket, while Bochicecheo at the same time pocketed his revolver. The defendant then proposed that they should take a walk, and they went together to a saloon, where each treated the other to one drink. As they were about to leave this saloon Tony Page came in and had a drink at the invitation of Bochicecheo. As they went out the defendant proposed that they should take a walk. Both the others acceded to the suggestion, and all three started up Dominick street; Bochicecheo being on the inside of the walk, Tony Page in the middle, and the defendant on the outside toward the street. As they proceeded on their midnight stroll Bochicecheo overheard the defendant say to Tony Page that he had had connection with Page's wife and was going to have connection again. ‘If you want to come and see,’ said the defendant, ‘I will go just right now.’ Tony Page responded with an opprobrious epithet, at which the defendant laughed, and they all walked on a distance of about two blocks further, when Bochicecheo saw the defendant start to run and exclaimed: ‘What is the matter with that fellow?’ Tony Page responded: ‘Maybe he saw something about the store.’ As he said this he walked forward four or five steps and dropped to the sidewalk. Bochicecheo asked him, ‘What is the matter?’ and he answered, Del Vermo stabbed me with a knife.’ Bochicecheo helped him into his home through the back yard, where his wife met him, and in response to her inquiry as to what was the matter he again said: Del Vermo stabbed me with a knife.’ Page was then placed on a couch and a physician was summoned by telephone. The patient was found to be suffering from a stab wound in the abdomen, which was between seven and eight inches deep, and had penetrated the intestines, severed the mesentery artery, and punctured the liver. He died as the result of this wound at 3 o'clock a. m. on July 1, 1906.

The witness Bochicecheo, on cross-examination, adhered to his narrative on the direct without substantial variation. He denied that Tony Page struck the defendant on account of his boastful declaration in regard to his intimacy with Mrs. Page; but, on the other hand, he admitted that he had not actually seen the defendant strike the deceased with a knife, or even seen him take the knife out of his pocket. It was not until after the defendant started to run and the deceased declared that he had stabbed him with a knife that the witness realized that any assault had been committed. As to the immediate flight of the defendant, however, there is no doubt whatever, and the facts of the case will be rendered most intelligible by now taking up the defendant's story of the occurrence as narrated by him upon the witness stand. He admitted his participation in the card games at the saloon of Daniel Page early in the evening, and that Tony Page had not given him any of the beer when he was the winner; but he denied that any trouble had ensued between them on that account, or that they had indulged in any cross words toward one another on that occasion. He also admitted that he had had some words with Bochicecheo in the saloon, but professed ignorance as to whether or not the trouble was because Bochicecheo would not let him into the game. He described his meeting with Bochicecheo on Dominick street later in the evening as friendly, notwithstanding the trouble that had taken place between them in the saloon, and corroborated Bochicecheo in reference to the meeting with Tony Page and their starting out for a walk after drinking together in another saloon. According to his testimony, however, Tony Page was the aggressor in the conversation which immediately preceded the affray. They had been talking pleasantly about women, he said, when Tony suddenly accused the defendant of being unduly intimate with his wife, called him a son of a bitch, and struck him with his fist upon the mouth. He grabbed me by the neck,’ said the defendant, ‘and in his other hand he had a knife. I grabbed his two hands and stopped the knife. I did not strike him back.’ While the defendant was thus holding Tony Page, he declared that Bochicecheo came behind and grabbed him by the neck, and all three tumbled down to the sidewalk together. Bochicecheo had a revolver. The defendant rose to his feet and started to run, when, according to his statement, Bochicecheo fired a shot at him, at the same time crying out that he would kill him. The defendant swore that he had no knife there before he started to run, he had no knife either in his pocket or in his hand, and that, although he had not stabbed anybody or hurt anybody, he fled because he had been shot at, and ran a mile and a half or two miles before he stopped. Although he was not pursued, he made no endeavor to go to his home, but went to sleep behind a fence. He was now in the suburbs of Rome, and the next morning he stopped at the house of a Mrs. Eldridge, who was a witness in the case, and there asked for something to...

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