People v. Walsh,

CourtNew York Court of Appeals
Writing for the CourtCROUCH
Citation262 N.Y. 140,186 N.E. 422
PartiesPEOPLE v. WALSH et al.
Decision Date31 May 1933

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.


[262 N.Y. 141]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.


[262 N.Y. 142]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.

[262 N.Y. 143]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. [262 N.Y. 144]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 whether

[186 N.E. 423]

or 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 [262 N.Y. 145]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 [262 N.Y. 146]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....

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90 practice notes
  • United States ex rel. Jackson v. Follette, No. 527
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 23, 1972
    ...of time, manner, and place, be a matter so immediately connected with the crime as to be part of its commission . . . ." People v. Walsh, 262 N.Y. 140, 148, 186 N.E. 422, 424 (1933) (citations omitted). See also People v. Marwig, 227 N.Y. 382, 125 N.E. 535 (1919)11 Here, Jackson had robbed ......
  • People v. Aaron, Docket Nos. 57376
    • United States
    • Supreme Court of Michigan
    • December 22, 1980
    ...aff'd in part 396 Mich. 825 (1976); State v. Diebold, fn. 49 supra; People v. H uter, 184 N.Y. 237, 77 N.E. 6 (1906); People v. Walsh, 262 N.Y. 140, 186 N.E. 422 (1933); Huggins v. State, 149 Miss. 280, 115 So. 213 (1928); State v. Taylor, 173 La. 1010, 139 So. 463 (1931); State v. Montgome......
  • State v. Hunt, No. A--38
    • United States
    • United States State Supreme Court (New Jersey)
    • January 20, 1958
    ...v. Krulewitch, 2 Cir., 145 F.2d 76, 78--79, 156 A.L.R. 337; Asgill v. United States, 4 Cir., 60 F.2d 776, 778--779; People v. Walsh, 262 N.Y. 140, 149--150, 186 N.E. 422; People v. Dellabonda, 265 Mich. 486, 496--507, 251 N.W. 594. Absent some governmental requirement that information be ke......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...(id. at 290, 213 N.Y.S.2d 448, 173 N.E.2d 881; citing, People v. Davis, 52 Mich. 569, 572, 573-574, 18 N.W. 362; People v. Walsh, 262 N.Y. 140, 150, 186 N.E. Page 894 Notwithstanding the laudatory objectives of the Rosario rule, it has generally been applied to criminal or quasi-criminal ac......
  • Request a trial to view additional results
90 cases
  • United States ex rel. Jackson v. Follette, No. 527
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 23, 1972
    ...of time, manner, and place, be a matter so immediately connected with the crime as to be part of its commission . . . ." People v. Walsh, 262 N.Y. 140, 148, 186 N.E. 422, 424 (1933) (citations omitted). See also People v. Marwig, 227 N.Y. 382, 125 N.E. 535 (1919)11 Here, Jackson had robbed ......
  • People v. Aaron, Docket Nos. 57376
    • United States
    • Supreme Court of Michigan
    • December 22, 1980
    ...aff'd in part 396 Mich. 825 (1976); State v. Diebold, fn. 49 supra; People v. H uter, 184 N.Y. 237, 77 N.E. 6 (1906); People v. Walsh, 262 N.Y. 140, 186 N.E. 422 (1933); Huggins v. State, 149 Miss. 280, 115 So. 213 (1928); State v. Taylor, 173 La. 1010, 139 So. 463 (1931); State v. Montgome......
  • State v. Hunt, No. A--38
    • United States
    • United States State Supreme Court (New Jersey)
    • January 20, 1958
    ...v. Krulewitch, 2 Cir., 145 F.2d 76, 78--79, 156 A.L.R. 337; Asgill v. United States, 4 Cir., 60 F.2d 776, 778--779; People v. Walsh, 262 N.Y. 140, 149--150, 186 N.E. 422; People v. Dellabonda, 265 Mich. 486, 496--507, 251 N.W. 594. Absent some governmental requirement that information be ke......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...(id. at 290, 213 N.Y.S.2d 448, 173 N.E.2d 881; citing, People v. Davis, 52 Mich. 569, 572, 573-574, 18 N.W. 362; People v. Walsh, 262 N.Y. 140, 150, 186 N.E. Page 894 Notwithstanding the laudatory objectives of the Rosario rule, it has generally been applied to criminal or quasi-criminal ac......
  • Request a trial to view additional results

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