This defendant, a colored man thirty-one years old, has been sentenced to death for the murder of Mrs. Aslee Edmond, a colored woman of like age. Early on the morning of December 6, 1942, her body was found upon a landing underneath a stairway leading upward from the first floor of a tenement house in the Harlem district of the city of New York. An autopsy exposed fifteen scattered stab wounds, one of which went through her heart and caused death. Her clothing was disarranged, but no trace of semen was discovered.
Neither Mrs. Edmond nor the defendant lived in the premises where her body was found. Her relatives and acquaintances swore they never saw him until after her death. He and members of his family swore he was at home during the time in issue.
Conspicuous among the prosecution witnesses were Arthur James and Emilio Funicello. They gave testimony that the defendant had repeatedly confessed his guilt of this crime to them at a time when all three were confined in a so-called house of detention which in fact was a district prison of the city of New York. In respect of this testimony of James and Funicello, the Trial Judge in his charge said to the jury: "If you come to the conclusion that the defendant did not admit to either of the witnesses James or Funicello that he stabbed and killed the deceased — that is, if you are not satisfied beyond a reasonable doubt that he made the admission or confession that he stabbed and killed Aslee Edmond to either of these two witnesses, then I charge you as matter of law that you cannot convict the defendant of any crime and that you then should acquit him." In line with that instruction, the verdict of guilty must now be taken to have been reached upon the basis of an acceptance by the jury of the story of James and Funicello. *Page 300 Hence the first question is whether the testimony of these two witnesses is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt (People v. Crum, 272 N.Y. 348, 350;People v. Weiss, 290 N.Y. 160, 170. See People v. Becker,210 N.Y. 274, 313).
The defendant was held in the house of detention from the day of this crime (December 6, 1942) until he was put on trial on May 12, 1943. During that period, the witness James was sojourning in that house as a stool pigeon, though he was supposed to be then in a State prison under a sentence of from ten to twenty years for robbery committed as a second offender. The trial of this defendant was the third occasion on which James had made to a court of justice a testimonial report of an alleged oral confession of an accused. In respect of James' present evidence, the Trial Judge said: "We have now the testimony that he does not expect any hope of reward. He is testifying because some public spirit moved him."
The witness Funicello had been an under-cover man in the same house of detention from as far back as November, 1937, though he had been sentenced in 1932 to a State prison for the term of his natural life upon his conviction of robbery committed as a fourth offender. He, too, is a seasoned reporter of oral admissions of high criminal guilt and he can boast of no less than a thousand felonies of his own. (See People v. Feolo, 282 N.Y. 276.)
James and Funicello quoted the defendant as having told them he knew Mrs. Edmond in Brooklyn when she lived there prior to her removal to Manhattan some nine or ten months before she was killed. Mrs. Edmond's fifteen year old daughter, who had always lived with her, did not remember ever having lived in Brooklyn. James and Funicello quoted the defendant as having told them he took several dollars out of the pocket-book of Mrs. Edmond after he stabbed her. Mrs. Edmond had no pocket-book with her when she left home on the night before her death, or so her daughter testified. James and Funicello quoted the defendant as having told them he had immediately traded away his overcoat after killing Mrs. Edmond. There is in evidence an apparently trustworthy business record of a sale on November 27, 1940, to the defendant *Page 301 of the overcoat that he was wearing when he was arrested on the day of the killing — December 6, 1942.
According to Funicello, the defendant's confessions to him were recited in the privacy of Funicello's cell without hindrance by the keepers, although a rule of the house of detention forbade any inmate to enter the cell of another. If Funicello is to be credited, the defendant seemingly was solicitous lest he fall short in an endeavor to vouchsafe his guilt of a wholly unjustified homicide of the gravest degree. Indeed the defendant (so Funicello said) went so far on one occasion as to make for Funicello a sketch of the place where Mrs. Edmond met her death and indicated thereon — among other things — the position of the body of Mrs. Edmond under the stairway, the location of a nearby ceiling light and the presence on the stairway of a woman. This draftmanship (so Funicello said) was undertaken by the defendant subsequently to a time when the defendant had upbraided Funicello for having reported to the District Attorney earlier admissions of the defendant.
The woman so referred to by Funicello came into sight at the trial when the People called to the witness stand a seventeen year old girl of sorry repute. Her testimony was that early on the day of the homicide she saw the defendant in the tenement house hallway where the body of Mrs. Edmond was thereafter found. This witness (who lived on the premises) said she had then and there stopped and that the defendant thereupon had stood still while they gazed at each other "for a minute." This witness also said: "I looked at his face. I didn't see any blood. He was brushing off his coat. He didn't say anything to me."
Later on that same day of the homicide, the same witness identified the defendant to the police as the man she had seen in the tenement house hallway just before the finding of Mrs. Edmond's body there. In respect of the preliminaries of that identification, a first-floor tenant of the building testified in behalf of the defendant as follows: "Well, the policeman brought the defendant — the policeman brought the man to our door and they asked the girl to identify him. She stood at the door and looked at him between twenty and twenty-five minutes. She didn't say anything." The layout of the hallway *Page 302 in question and the claimed existence of an identification witness had thus been impressed on the defendant after the homicide had been committed and consequently the report by James and Funicello of the defendant's awareness of these facts is in any view of it of quite dubious significance.
On the whole, we cannot see in the testimony of James and Funicello a sufficient basis for the signing of a warrant for the death of this defendant.
This court must now say a word in criticism of the trial prosecutor. In his summation, he said to the jury: "I don't know what percentage, gentlemen, of the crimes in this town, in this state, in this country, in this world would ever be solved without the testimony of informers. We are entitled to use those persons. The age of chivalry is gone. The days when knights in armor, men on the field of battle, played the games according to the rules of football or boxing are over and forgotten. There are no rules of the game when you are investigating a crime, or when you are trying to find out and prove the guilt of a defendant."
These sentiments, of course, were inexact. There is a canon that calls for candor on the part of every lawyer in his conduct before the courts. From that viewpoint, the trial prosecutor erred when in his opening statement to the jury panel on this trial he concealed the identity of James and Funicello by referring to them as "two other witnesses who I am sure you gentlemen do not know." This was not right because the trial prosecutor then knew that three members of the panel (who later were accepted as trial jurors) had served on the jury in other capital cases in which Funicello had been a prosecution witness. This defendant was in fairness entitled to be informed on that score at the time of the selection of the jurors who were to say whether his guilt was proved by Funicello's testimony.
For the sake of justice according to law, it may be worth while to add that persons detained for trial on criminal charges or as witnesses should not be put or kept in the same room with convicts under sentence. (County Law, § 92. Cf. Code Crim. Pro. § 618-b.)
The judgment of conviction should be reversed and a new trial ordered. *Page 303