Opinion
June 25, 1920.
Abraham H. Kesselman [ George W. Martin with him on the brief], for the appellant.
Ralph E. Hemstreet, Assistant District Attorney [ Harry E. Lewis, District Attorney, with him on the brief], for the respondent.
The theory of the prosecution is that the homicide was directed by a conspiracy of which the defendant was one of the master spirits. The evidence is that the conspiracy planned the extermination of a rival band in order to take over its system of blackmail, to clear the way for gambling games, to exact tribute from gamblers, for vengeance and for self-preservation. The homicide was the result of a fusillade fired by several men, who it is testified obeyed the orders of the defendant and other leaders. The defendant was not present at the scene of the killing. The defendant while not denying acquaintance and association with his alleged fellow-conspirators, including the actual murderers, asserted that his association was social and innocent, at least of blood, and denied the conspiracy for this homicide.
If we do not mistake the contention of the learned counsel for the appellant, his plea is not so much against the sufficiency of the evidence as against its character. He contends that the witnesses essential to the proof revealed themselves as unworthy of belief. His plea is aimed also at errors of rulings upon evidence, and at the fairness of the trial.
As the prosecution depended largely upon the turning of State's evidence, it was natural that the witnesses who did so were vulnerable; and moreover it must be admitted that their own testimony revealed that their lives generally were corrupt, unsavory and criminal. But their credibility was essentially a question for the jury. ( People v. Seidenshner, 210 N Y 341, 358; People v. Becker, 215 id. 126; People v. Cohen, 223 id. 406, 411.) The evidence was sufficient to fasten guilt upon the defendant, and the record does not justify an interference upon the facts.
One of the assassins was a man named Vollero. He was tried separately for the killing of Ubriaco, who fell before the same fusillade. The conviction of Vollero for murder in the first degree was affirmed by the Court of Appeals ( People v. Vollero, 226 N.Y. 587) "under section 542 of Code of Criminal Procedure." Naturally we may resemble the case of Vollero in its general features to the case at bar. We find that substantially all of the points made and elaborately argued in the case at bar were made and elaborately presented in Vollero's case. We assume, of course, that none of the points made in Vollero's case was overlooked, and we must conclude that none was deemed fatal to the judgment of conviction. The counsel were different, but the learning and thoroughness of the brief made in Vollero's case do not suffer in comparison with the brief in the case at bar.
The defendant's first point is that the People were allowed to give evidence and prove various other crimes that the defendant committed or was connected with, not charged in the indictment. The principal extraneous crime was the murder of Ferrazano, as appears in point V. It is quite clear that the Court of Appeals considered this point in particular, as the sole dissentient in that court was POUND, J., upon People v. Molineux ( 168 N.Y. 264), a leading case upon conspiracy, which was cited by counsel in Vollero's case and by counsel in the case at bar. Defendant's point II is the error of admitting the evidence of the attempt to kill Morello with a bomb. This falls within the category of a separate crime and is subject to the same principle. As to the bomb, it appeared in Vollero's case that Vollero and this defendant were both present (pp. 198, 199). Defendant's point III is that it was error to admit evidence that the defendant was a leader of the Camorra. Defendant's point IV is that it was error to admit in evidence the fact that the Navy street gang levied blackmail upon artichoke dealers. Defendant's point V is, as we have said, an elaboration of his point I. The final point is against the fairness of the trial. A similar point was presented in Vollero's case, but of course the specifications were entirely different.
See People v. Vollero, Court of Appeals Cases, Law Library, Kings County, March, 1919; appellant's points, pp. 23, 61.
Record, Id. pp. 198, 199.
Id. Appellant's points, pp. 26, 27, 28, 29. — [NOTE BY THE COURT.
Id. Appellant's points, p. 37. (See foot note, ante, p. 434.)
As to the final point, the unfairness of the trial, the specific instances to which we are referred do not in our opinion make the authorities cited precedents for a reversal. The scope of the cross-examination of the defendant as a witness permitted questions as to his credibility, and the various questions which were addressed to that feature, where there were exceptions, were legitimate. (Underhill Crim. Ev. [2d ed.] §§ 58, 60, 61.) Some of the questions upon which stress is laid were answered before objection, or the rulings were not excepted to, or the answers were not of a character in themselves prejudicial. We find no capital error in the conduct of the case by the district attorney, or in the trial of the case by the court.
The judgment must be affirmed.
JENKS, P.J., MILLS, PUTNAM, BLACKMAR and KELLY, JJ., concur.
Judgment of conviction and order ffiarmed.