People v. Walsh

• Decision Date: 31 May 1933
• Citation: 262 N.Y. 140,186 N.E. 422
• Parties: PEOPLE v. WALSH et al.
• Court: New York Court of Appeals Court of Appeals

262 N.Y. 140

186 N.E. 422

PEOPLE

v.WALSH et al.

Court of Appeals of New York.

May 31, 1933.

Vincent Walsh, Alfred Celentano, Joseph Celentano, and Russell Kelly were convicted of murder in the first degree, and they appeal.

Reversed, and a new trial ordered.

CRANE, J., dissenting.

Appeal from Court of General Sessions, New York County.

John A. Bolles, James D. Froelich, and Frederick R. Coudert, Jr., all of New York City, for appellant Vincent Walsh.

Millard H. Ellison, Samuel W. Greenwald, and Abraham L. Lazarus, all of New York City, for appellant Alfred Celentano.

Robert E. Manley, Samuel Stern, and Leonard Bronner, Jr., all of New York City, for appellant Joseph Celentano.

James D. C. Murray, of New York City, for appellant Russell Kelly.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

Arthur J. W. Hilly, Corporation Counsel, of New York City (J. Joseph Lilly, of New York City, of counsel), for City of New York, amicus curiae.

CROUCH, Judge.

The four defendants were jointly indicted in the common-law form for murder in the first degree. The fatal shot was fired by the defendant Walsh. The case was tried and submitted to the jury solely as a felony murder. The felony charged was robbery in a restaurant speakeasy. The victim was Joseph P. Burke, a police officer. All the defendants were found guilty and were sentenced to death.

The trial judge, after telling the jury that the point for them to decide was whetheror not a felony had been committed, and, if so, whether Officer Burke was killed while it was in progress, charged as follows: ‘I am going to charge you as a matter of law in this case that if you believe the testimony of the People's witnesses, if you believe the events, if you are satisfied beyond a reasonable doubt that the events transpired as detailed by the People's witnesses, if that testimony is accepted by you, then Officer Burke was killed while these defendants were participating in a felony, and if that is the case, then your only verdict can be one of murder in the first degree. If you find that is not the case, if you are not satisfied by the testimony of the People's witnesses, of course, your verdict must be not guilty.’

And also as follows: ‘If you find in this case that the defendants were acting in concert, if you find that they were engaged in the commission of a felony-the felony of robbery, if you find and you are satisfied beyond a reasonable doubt that the killing occurred as detailed by the People's witnesses, then you should find them guilty. If you are not so satisfied, you should acquit them.

If upon any hypothesis, warranted by the testimony of the people's witnesses, the jury could have found that the commission of the robbery had come to an end before the killing took place, the instructions above quoted constitute prejudicial error. Their purport was something more than a mere statement that the people's testimony sufficed to make out a case of felony murder, if the jurors believed it. There was a clear direction to the jury, not that they could find, but that they must find the defendants guilty, if they believed the facts were as the people's witnesses testified. The jury was precluded from finding the facts in accordance with the people's testimony, and at the same time finding Walsh was not engaged in the commission of a felony when he killed Officer Burke.

The testimony of the people's witnesses disclosed the following facts: In the city of New York, on the northwest corner of Seventh avenue and West 136th street, ground floor, was located a restaurant speakeasy having a front entrance on Seventh avenue and a side entrance on West 136th street, opening through a small vestibule into a rear room taken up with tables. The front room, separated from the rear by a screen or partition, contained a bar and a lunch counter. There were two doors between the bar room and the rear room. Immediately north of this establishment fronting on Seventh avenue was a stationery and cigar store. Back of both was a room, referred to as the ‘entry,’ with a toilet used in common. Doors led into the entry both from the rear room of the restaurant and from the rear of the stationery store. There was thus, by passing through the stationery store into the entry, a third means of access to the restaurant. The vestibule of the side entrance above referred to was a small compartment about three by four feet. The inner door contained a peek hole window, had a snap lock, and was always kept closed by means of an automatic check. The outer door was always unlocked. Shortly before 8 a. m., on Sunday morning, June 12, 1932, in an automobile driven by defendant Kelly, the four defendants came to this place for the purpose of robbing it. The automobile was parked nearby with the motor running. Kelly remained outside across 136th street. A. Celentano then entered the restaurant by the front door and bought a glass of beer and a package of cigarettes. The only occupants of the restaurant were the barkeeper and the porter. A few minutes later J. Celentano and Walsh came in together through the front door. Both had guns. The two occupants were told to put up their hands, and did so. Four dollars were taken from the porter's pocket, and sixteen or seventeen dollars from the cash register at the back of the bar. The two occupants were taken to the entry at the rear; the porter remained there, but the barkeeper came back and went behind the bar. Walsh remained in or near the entry to guard the porter, while the two Celentanos rifled the safe and the drawers back of the bar. While so engaged, a colored man and woman knocked at the side door which was opened by Walsh, who ordered them into the entry where the porter was. Walsh remained at or near the doorway of the entry. About this time three police officers, Regan, Rhodes, and Burke, on their way to go on post, were informed at the corner of Seventh avenue and 136th street that something was wrong in the restaurant. Thereupon Officer Burke stationed himself at the side door on 136th street, and Officers Regan and Rhodes went to the front door. They could not get in. Officer Rhodes, evidently familiar with the premises, left Officer Regan and entered the stationery store to get in the restaurant through the back entry. Officer Regan kicked at the front door which was thereupon opened by one of the Celentanos. He entered, revolver in hand, told the Celentanos to throw up their hands, and proceeded to search them. Officer Rhodes, coming through the stationery store by way of the back entry, joined Officer Regan within a minute or two. He did not see Walsh. Walsh from where he had been standing had a view of the front door. It is a fair inference that he saw what happened when Officer Regan entered, and immediately started to make his escape through the side door into 136th street. The porter, who was in the entry, testified he saw Officer Regan come in the front door, and that at that moment Walsh walked away from him. The barkeeper testifies that after Officer Regan entered and rounded up the Celentanos, he heard the side door close, and that, right after the door closed, Officer Rhodes walked in from the entry. After Rhodes rejoined Regan they made the two Celentanos lie face down on the floor, and completed the searching. Walsh, in the vestibule, opened the outside door, saw Officer Burke standing at the left near the outside wall, drew back, closed the door, then partly opened it again, reached out and fired the fatal shot. Thereupon he fled in the direction of Eighth avenue and was subsequently captured. Kelly, the lookout, heard the shot and saw a fellow running down the street. After a short time he went to the car, drove away, abandoned the car, and was subsequently arrested.

It is possible to have a factual situation in a case of felonious homicide where only one conclusion can be drawn as to whether or not the homicide took place during the commission of the felony. There have been such cases in this court. People v. Huter, 184 N. Y. 237, 77 N. E. 6;People v. Schleiman, 197 N. Y. 383, 90 N. E. 950,27 L. R. A. (N. S.) 1075,18 Ann. Cas. 588;People v. Marendi, 213 N. Y. 600, 107 N. E. 1058;People v. Marwig, 227 N. Y. 382, 125 N. E. 535, 22 A. L. R. 845. The instances where a trial judge may charge the point as matter of law are, however, exceptional. People v. Smith, 232 N. Y. 239, 133 N. E. 574;People v. Schleiman, supra, page 390 of 197 N. Y., 90 N. E. 950.

Whether the robbery here was still in progress when the shot was fired depends largely upon inferences to be drawn from the conduct of Walsh. The prosecution admits that the two Celentanos were under arrest, and hence no act by either of them thereafter prolonged its commission. Kelly was across the street as a lookout and aid in the ‘getaway.’ In a legal sense he was aiding in the commission of the robbery. People v. Usefof, 227 N. Y. 622, 125 N. E. 923,...