The indictment herein accuses defendant of the crime of murder in the first degree *Page 201 committed in Kings county on November 10, 1929, by shooting Frank Coppola with a revolver. That defendant did shoot and kill Coppola is admitted. The jury was justified on the evidence in finding that he did so from a deliberate and premeditated design to effect death. The proofs tend to establish that defendant, aged twenty-four, and his seventeen-year-old wife "Fluff" had attended a dance at a dance hall; that they left for their home at 105 Devoe street about midnight; that defendant dropped behind his wife to buy some newspapers; that she went on a block ahead of him when she arrived at Devoe street; that on the opposite side of the street in the middle of the block four young men, including Coppola, were at work repairing an automobile; that Mrs. Zackowitz was either "insulted" by some remarks of one of them or thought she was; that she upbraided them; that when defendant came up to his wife she told him that she had been "insulted" and they crossed the street and defendant with much profanity threatened them that "if they did not get out of there in five minutes he would come back and bump them all off;" that defendant returned to the scene armed with a twenty-five calibre automatic pistol; that he kicked Coppola who bent over; that as Coppola got up defendant drew his pistol and fired one shot; that Coppola was struck in the lung and heart and, as a result of the shot, died soon afterwards; that defendant then met his wife on the street and they took a taxi to Manhattan; that defendant was arrested on or about January 7, 1930; that he made a confession in which he sought to defend the act of killing by saying that Coppola threatened him with a monkey wrench and that he did not realize that he had shot him; that he got the gun at his home and went back to ask them to apologize; that he took the gun to protect himself "because they were four guys;" that he had been drinking, was a little excited but not drunk; that he knew what he was doing.
On the trial, defendant and his wife testified. Defendant *Page 202 said in substance that he had carried the .25 automatic to the dance and had it with him on the occasion of the first encounter; that he talked with the men; that they denied that they had insulted his wife; that he thought it was not worth quarreling about and left them; that he did not threaten to bump them off; that when they went home his wife in tears and evident distress reluctantly told him that they had made a proposition to her which was understood as an offer of two dollars for sexual intercourse; that he went back to demand an apology; that he kicked at Coppola but did not hit him; that Coppola threatened him with a monkey wrench; that he was frightened; that he did not intend to kill Coppola but drew the pistol to frighten him; that the discharge of the gun was an accident; that he was partly intoxicated; that he had no permit to carry a gun.
The court submitted to the jury the various degrees of felonious homicide, and the law as to justifiable and excusable homicide and instructed them particularly as to the law of killing in self-defense. On the theory that defendant repudiated intoxication as a partial defense, tending to reduce the degree of the crime, the court did not instruct the jury on the question of intoxication. (Penal Law, § 1220.) In the circumstances, the judgment should not be reversed on this ground as the defendant did not make the question a serious one. (People v. VanZandt, 224 N.Y. 354; People v. Koerber, 244 N.Y. 147, 150.) At the conclusion of the charge defendant's counsel said:
"Mr. Rubenstein: The defendant excepts to the entire charge, and specifies as his ground the manner in which the charge was delivered, the inflection of your Honor's voice, the use of your hands, your eyebrows — the pauses and other mannerisms. No requests."
Unfortunately, perhaps, we have no record of the judge's manner of delivery. The point is not pressed on the appeal. *Page 203
The questions of intent and deliberation and premeditation were for the jury. Their verdict is amply sustained by the evidence and the conviction should be affirmed "without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants." (Code Crim. Pro. § 764.) "But the question of substantial right is not the abstract question of guilt or innocence. A guilty man is entitled to a fair trial. * * * Error is substantial when we can say that it tended to influence the verdict." (People v. Sobieskoda,235 N.Y. 411.) We must, therefore, give careful heed to one matter which is brought to our attention on this appeal without regard to the convincing character of the People's evidence.
Nearly two months after the killing of Coppola, the police entered defendant's home in connection with his arrest and found there concealed in a box in the radio three revolvers and a tear-gas bomb, together with a supply of cartridges suitable for use both in the revolvers and the bomb. Defendant had in his confession, which was received without objection, admitted that he had these weapons in his possession at the time of the killing. The twenty-five calibre automatic was not among them. Defendant says that he threw it away after he shot Coppola. The People, as a part of their principal case, introduced these articles in evidence over defendant's objection and exception. This is the only ruling by which the question of error in law is presented on this appeal. No objection was made to the summation by the District Attorney nor to any specific instructions by the court. The possession of these dangerous weapons was a separate crime. (Penal Law, § 1897.) The broad question is whether it had any connection with the crime charged. The substantial rights of the defendant must be protected. Where the penalty is death, we may grant a new trial if justice requires it, even though no exception was taken in the court below. (Code Crim. Pro. § 528.) *Page 204
The People may not prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. (People v. Molineux, 168 N.Y. 264; People v. Pettanza,207 N.Y. 560; People v. Moran, 246 N.Y. 100, 106.) None of them apply here nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. (Commonwealth v.Snell, 189 Mass. 12, 21.) The rule laid down in the Molineux case has never been applied to prevent the People from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was "a part of the history of the case" having a distinct relation to and bearing upon the facts connected with the killing. (People v. Governale, 193 N.Y. 581; People v. Rogers, 192 N.Y. 331; People v. Hill,198 N.Y. 64; People v. Rodawald, 177 N.Y. 408.)
As the District Attorney argues in his brief, if defendant had been arrested at the time of the killing and these weapons had been found on his person, the People would not have been barred from proving the fact, and the further fact that they were nearby in his apartment *Page 205 should not preclude the proof as bearing on the entire deed of which the act charged forms a part. Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill; not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out his threats, proceeded to do so.
If the confession was admissible on this point, the weapons themselves were admissible in evidence. If the evidence corroborates the confession and several crimes having "an obvious relation to the crime charged in the indictment" are referred to in the same confession, both the entire confession and the corroborative evidence are admissible. (People v. Rogers,supra, p. 352.) The relation between the possession of the weapons and the crime charged tended to corroborate the confession as a whole. The sequence of events made the chain incomplete without this important link.
The case would have been quite different if the weapons came into defendant's possession after the killing. The proof would then be of separate crimes unconnected with the killing and its admission reversible error under the Molineux Case (supra).
It is urged that defendant may have been half-drunk, infuriated, frightened, impulsive and measurably irresponsible; that he should not have been convicted of murder in the first degree; that the proof of possession of the weapons prejudiced the jury against him. If, as we have held, the proof was competent, the jury was free to give it such weight as it deserved. On the other hand, if it was incompetent, was the error substantial enough to call for the reversal of his conviction? Defendant presented his side of the case to the jury. He gave his account of the weapons and how he came by them, which was consistent with innocent purpose on his part. Admittedly he did have an argument with Coppola and his fellows, did go *Page 206 home, did return armed and did quarrel and kill. His answer is that the killing was accidental. How can we say with confidence in the circumstances of this case that the evidence, even if technically objectionable, so tended to influence the jury against him that "justice requires a new trial?" (Code Crim. Pro. § 528.) While it is not inconceivable that the result might have been otherwise without this evidence (People v. Slover,232 N.Y. 264, 267), it is unlikely that it turned the minds of the jury from a lesser degree of crime to the disadvantage of accused. In the circumstances of this case, whether he had one weapon or a dozen would not materially change the nature of his offense. The proof merely darkened that which was black enough when painted by his own brush.
The judgment of conviction should be affirmed.
LEHMAN, KELLOGG and O'BRIEN, JJ., concur with CARDOZO, Ch. J.; POUND, J., dissents in opinion in which CRANE and HUBBS, JJ., concur.
Judgment reversed, etc.