I dissent and I will express my views briefly on the several objections to the judgment appealed from, mentioned in the prevailing opinion.
1. The first objection is that there was no evidence that the defendant had been arrested by Officer Murtha on the charge of committing a felony, and hence the defendant could not be convicted of murder in the first degree, on the ground that when he killed O'Connell he was attempting to escape from lawful custody after being arrested for a felony.
The court in its charge submitted to the jury the question of fact whether Officer Murtha had actually arrested the defendant, and defined what constitutes an arrest, and the power of police officers to arrest without warrant, in the language of the Code of Criminal Procedure.
The jury by its verdict answered the question in the affirmative, and there was, in my opinion, sufficient evidence to justify the verdict. The defendant testified on the trial that after Murtha had searched his pockets, he, the defendant, made two or three steps away and that Murtha said, "Hey, come here." The defendant came back and Murtha took him by the arm and never loosened his hold until he was shot. The evidence also showed that on the day following the killing the defendant was examined by an assistant district attorney, and the following are some of the questions put to him, and the answers which he gave: *Page 621
"Q. You say the policeman grabbed hold of you and then what happened? A. After he searched all my pockets, then he grabbed me by the arms.
"Q. Then what happened? A. He wanted to bring me with him, and then I heard some shots.
"Q. You knew he was a policeman? A. Of course I knew he was a policeman. He was in uniform."
The jury could have found that the defendant, who is not a citizen of the United States, was actually carrying a concealed revolver and, therefore, guilty of a felony; that Murtha, who was a police officer in uniform, grabbed the defendant and searched him; and that thereafter when the defendant attempted to depart, the officer seized and detained him. Murtha is dead and we have not the benefit of his version of the affair, but from the fact that he called the defendant back and placed him under restraint when the latter stepped away, the jury would have been justified in finding that the officer had arrested the defendant for carrying the weapon.
The fact that the defendant was actually committing the felony at the time made it unnecessary under section 180 of the Code of Criminal Procedure for the officer to notify him of the cause of arrest.
2. The second ground of objection is that the charge to the jury omitted two essential elements necessary to make out a case of murder in the first degree, upon the theory adopted by the court, the omissions being the failure of the court to charge (a) that the arrest must have been upon a charge of felony; and (b) that the shot must have been fired at O'Connell by the defendant to effect his escape. The charge was in this language: "So that if you should find that this defendant was under arrest or under lawful restraint by Officer Murtha, and that afterwards he was escaping from lawful custody, and that then and under thosecircumstances he fired the shot at O'Connell, which shot ultimately killed O'Connell, and that he did this without a design to effect the death of *Page 622 O'Connell but under the conditions that I have given you and thecircumstances set forth before you, your verdict could be that of guilty of murder in the first degree." The words italicized and emphasized in the foregoing quotation incorporate in the charge all the facts that the jury might have found were established on the trial, including the ground upon which the defendant had been arrested, and the motive with which he shot O'Connell.
3. The third ground of objection is that certain testimony was improperly admitted, showing what was said at an examination of the defendant by the assistant district attorney on the day following the shooting, at the hospital where O'Connell, the wounded man, was lying in bed. In the course of the examination the defendant was questioned and answered as follows:
"Q. This man lying here now before you, says that you are the man who shot him. What have you got to say about it? A. I did not see him.
"Q. He says that he saw you running toward him with a gun in your right hand and that you shot at him and shot him and he fell down. What you got to say about that? A. No, I didn't shoot him — I didn't see him."
These questions and answers were only a part of the examination, and it may be said in passing they were not specifically pointed out as objectionable — the objection made by defendant's counsel being to the whole of the examination.
On the trial of the action the defendant testified that another Italian named Tony had shot Officer Murtha and that he and Tony ran away together and in their flight Tony passed the revolver to the defendant. The defendant says he was in a very nervous condition, and that in his excitement he fired the revolver in the air, and after going along for some time fired it a second time in the air. *Page 623
He was asked on cross-examination as to what he had said at the hospital by O'Connell's bedside, and whether he had not in his statement there told a story different from his testimony on the trial. His reply was that he did not speak at O'Connell's bedside; that he did not know what was going on.
Then, in rebuttal, witnesses were called to testify as to what was said at the hospital, and their testimony tended to contradict what the defendant swore to on the trial. On the trial the defendant said he had a revolver and fired it twice in the air; at the previous examination he declared repeatedly that he did not do any shooting and that he had no revolver. Saying also: "How could I shoot him — with my hands? I had nothing * * *. Why should I shoot them for? What benefit would it be to me? I did not know the persons. Why should I shoot them for?" And much more to the same effect.
It was under these circumstances that the testimony of which the defendant now complains got into the case. I think the testimony was proper to contradict what the defendant swore to upon the trial, and was not rendered improper by the fact that incidentally it showed that the deceased, O'Connell, had identified the defendant as his assailant.
The examination was taken after the defendant had been warned of his rights and that what he said would be used against him. What was said was clearly and amply proved by the witnesses, so that, if proper at all, the evidence is not objectionable on any ground of informality in its reception.
4. The fourth ground of objection is to proof made by the assistant district attorney that the defendant had been tried about a month or two before the trial in this case on a charge of murder in the first degree for killing Officer Murtha, and had been convicted of manslaughter in the first degree. He had not, however, been sentenced at the time of the trial under review. *Page 624
No claim was made on the trial that it was improper to show the former conviction. On the contrary, the defendant's counsel seemed to welcome the proof and he sought to use it for his own purposes. At the conclusion of the evidence the counsel demanded that the defendant be brought to the bar and sentenced on his conviction of manslaughter in the first degree, adding that that was the defendant's right and prerogative. The point he sought to make, apparently, was that if the defendant was actually imprisoned upon the judgment following the former conviction he could not be punished under any judgment in this case until his term of imprisonment under the former judgment had expired.
Of course it was not proper to receive any proof as to the other trial and conviction, but under the circumstances the defendant's counsel was in a large degree responsible for it and no legal error is presented.
Objection is also made to the comment of the assistant district attorney, in his address to the jury, upon the former verdict. If the proof was in the case, it was not improper for him to make some comment thereon. What he said is quoted in the prevailing opinion and the only objection to his remarks was that he assumed to say "what the jury thought" on the former trial — the defendant's counsel contending that the assistant district attorney could not know what the jury thought. This objection may be disregarded as trivial.
5. The fifth objection is to the admission in evidence of certain testimony to the effect that an information had been laid before a justice of the peace charging the defendant with having assaulted another Italian. The witness of whom the questions were asked regarding the information had testified that the defendant's reputation was good; that he had never heard anything against the defendant's character, and did not know of the defendant being in any fight. On cross-examination this witness was asked whether he had heard of the information laid before *Page 625 the justice of the peace as to the alleged assault, and that a warrant had been issued for the defendant's arrest. The witness testified that he had not heard of the matters inquired about, and that was all there was to the incident.
It is upon these several grounds of error which I have considered that a reversal of the judgment against the defendant is recommended. They are wholly insufficient to justify such a conclusion. I have no doubt of the defendant's guilt, and I believe the record is free from serious error.
The judgment appealed from should be affirmed.
WILLARD BARTLETT, Ch. J., HISCOCK and CARDOZO, JJ., concur with MILLER, J.; CUDDEBACK, J., reads dissenting opinion; COLLIN, J., votes for affirmance; WERNER, J., not voting.
*Page 627Judgment of conviction reversed and new trial ordered. *Page 626