The appellants, Ryan and Venetucci, were indicted jointly with Thomas Fitzgerald and John Croghan for the murder of Paul Cassullo. Fitzgerald and Croghan pleaded guilty of murder in the second degree and have been sentenced to imprisonment. Ryan and Venetucci have been convicted of murder in the first degree.
The dead body of Paul Cassullo was found at about six o'clock on the morning of December 8, 1932, on the stoop in front of a building on West Fifty-ninth street, where he conducted a grocery store and lived in an apartment above his store. Death was caused by a revolver bullet which had entered his body from the back. It was shown without dispute that Fitzgerald and Croghan had, earlier on the same morning, left Ryan and Venetucci and walked toward Fifty-ninth street with the express intention of "holding up" Cassullo when he opened the grocery store. In accordance with a prearranged design, the appellant Venetucci followed them in a car which the defendant Ryan and another youth, who maintained a speakeasy with him, had stolen. About a half hour later, Venetucci, as planned, picked up Fitzgerald and Croghan and the three proceeded to Ryan's apartment where they told Ryan that they had to shoot Cassullo. They had previously made a similar statement to Venetucci.
No eye-witnesses to the actual homicide were produced. Ryan was a half-mile away when it occurred. It is said that he participated in planning a "hold up" and even picked Cassullo's grocery store as an easy place to rob; *Page 302 that he joined in secreting Fitzgerald's and Croghan's revolvers; that he loaned the automobile to be used in the proposed crime and that he expected to share in its fruits if any were obtained, though no express promise to give him anything had been made by Fitzgerald and Croghan. Perhaps all this happened and an inference might be drawn by the jury that Ryan joined in a conspiracy to commit a felony. Then he could be held as a principal, if such felony was thereafter committed or attempted, and is guilty of murder in the first degree, if Cassullo was killed by any person when engaged in the commission of, or in an attempt to commit, such felony. (Penal Law, § 1044.) If the People have proven that Cassullo was killed by Fitzgerald and Croghan while attempting to commit the felony of robbery in pursuance of a concerted plan in which Ryan and Venetucci joined, then the judgment of death must be affirmed however slight may be the defendants' guilt compared with the guilt of the ones who not only took part in the conspiracy to commit a felony, but who entered upon its execution and while so engaged committed the homicide.
The penal responsibility for the killing of a human "by a person engaged in the commission of, or in an attempt to commit a felony," which by statute extends to all concerned in the felony or "attempt to commit a felony," cannot be further extended by the courts beyond the field covered by the statute. It does not extend to every killing more or less connected with the conspiracy to commit a felony. The responsibility is confined to a killing committed during the period between the inception of the attempt to commit the felony and the consummation or the frustration and abandonment of the attempt. The question in this case is whether the evidence justifies the inference that Cassullo was killed by Fitzgerald or Croghan during that period.
It may be assumed that competent evidence admitted upon the trial justifies and indeed almost dictates the *Page 303 inference that the killing was committed by Fitzgerald and Croghan. They were at the place where the body was found about the time when the killing must have occurred. They went there armed with loaded revolvers intending to commit a felony. It is possible that some other person might at that time have shot Cassullo either accidentally or in pursuance of some purpose of his own, but, in the absence of special circumstances importing some degree of probability to what would otherwise be extraordinary, a jury might well in the exercise of its reasoning faculties discard such possibility. Against the probability, tested by experience, that men bent on robbery, arming themselves with loaded revolvers, will shoot to accomplish their purpose or to effect their escape if their purpose be thwarted, the possibility that some other undisclosed armed person, for some undisclosed reason, may have shot the fatal bullet weighs but light in the balance. Quite evidently then the jury might find that the shooting of Cassullo was committed by Fitzgerald or Croghan as a result direct or remote of the conspiracy to commit a robbery.
That alone is not sufficient to sustain the conviction of these defendants who were not even present at that time. We may paraphrase what was said by this court in People v.Sobieskoda (235 N.Y. 411). "Fitzgerald and Croghan were the defendants' agents only in the prosecution of the design against Cassullo. Only what they did in the execution of that design is chargeable against the defendants. The defendants' moral guilt may be established. Their guilty design against Cassullo was the remote, if not the proximate cause of the killing. Yet, however bad their moral predicament, their legal guilt may be defined only in terms of law." The circumstantial evidence must be sufficient to permit an inference free from reasonable doubt that Cassullo was killed in the attempted execution of the design to commit a robbery. That is the mandate of the Legislature. *Page 304
Various possibilities must be discarded before that result can be reached. The body of Cassullo was found, as stated, on the stoop in front of the building. "Presence upon the premises at the time the homicide was committed has been regarded as very important as indicating that the criminal was still engaged in the commission of the original crime." (People v. Smith,232 N.Y. 239, 242.) That circumstance is wanting here. There is possibility that the homicide may have been accidentally committed before attempt to rob had begun or after the criminals had made good their escape from the premises. There is possibility that one of the criminals shot Cassullo for personal reasons. There is possibility that the shooting occurred after abandonment of the attempt to rob and after escape by the criminals from the premises while Cassullo was attempting to apprehend them.
We recognize that the first possibilities are remote. The last possibility creates at least a substantial question of fact. Unless the jury resolved that question against these defendants, it could not convict. (People v. Marwig, 227 N.Y. 382.) It is said that some circumstances, such as the facts that a bullet was found in the store and that the deceased was shot in the back, show that the homicide occurred before escape was effected. Whether these circumstances are sufficient to show, in spite of the place where the body was found, that the shooting occurred before abandonment of an unsuccessful attempt to rob and escape from the premises may well be debatable. It need not be decided now, for the People produced evidence that Fitzgerald and Croghan asserted or admitted to these two defendants that the homicide had occurred during the attempt to rob. If such assertions or admissions are competent evidence of the facts stated therein against the defendants then the chain of proof is complete. If incompetent then its reception and the charge based on its reception presents error requiring a reversal and a new trial at which other proof may be adduced. *Page 305
The statements of Fitzgerald and Croghan concerned occurrences at which these defendants were not present and of which they had no personal knowledge. No admission of the truth of a statement made by a third party can be inferred from the silence of an auditor where the auditor is under no duty to speak and has no personal knowledge upon which he could base contradiction. That is conceded, but it is said that these statements were admissible against these defendants because made by a fellow conspirator.
Declarations made by one conspirator in the prosecution of the enterprise are evidence against all, but they must be made in furtherance of the enterprise and while the enterprise is pending. Narration of past facts after the enterprise has come to an end by success or failure is not admissible in evidence against the others. (People v. Davis, 56 N.Y. 95; Logan v.United States, 144 U.S. 263.) Here the statements were not made in furtherance of the common enterprise. That had come to an end by failure. They were merely part of explanation given for the failure. The conspirators in making the statements were certainly not acting as agents in behalf of their fellows when they made this explanation to them. It follows that the reception of this narration as evidence binding upon the defendants who had no personal knowledge of the facts is erroneous. It has no more logical probative force against them than any other hearsay testimony. It follows that the judgment of conviction must be reversed.
What we have said about Ryan applies also to Venetucci. True his participation in the original attempt to commit the felony is more direct, but as in the case of Ryan, his conviction can be sustained only upon competent proof that Cassullo was killed during the commission of an attempt to commit a felony.
The indictment against these defendants is in common-law form, but the trial judge submitted the case to the *Page 306 jury only upon the theory of a felony murder. Whether the defendants might have been convicted upon another theory is not before us.
The judgments of conviction should be reversed and a new trial ordered.