The deceased, Paul Cassullo, ran a grocery store on West Fifty-ninth street, New York city. He lived in an apartment over the store. At about six o'clock in the morning of December 8, 1932, he was found leaning against the banister of the stoop in front of his residence mortally wounded. The death wound was caused by a 32-calibre revolver bullet which had entered his body from the back.
Four persons were indicted for the commission of murder, these two appellants and two others named Fitzgerald and Croghan. The prosecution accepted pleas of murder in the second degree from the two latter and they have been sentenced.
These two appellants were brought to trial upon indictments charging them with murder in the first degree, and have been convicted of that crime on the ground that they, although absent (Penal Law, § 2), aided and abetted in the commission of a felony — the attempted robbery of the deceased — during which the killing was done. (Penal Law, § 1044, subd. 2.)
No eye-witnesses to the shooting were produced. Confessions were obtained from both appellants showing guilty knowledge on their part of the purpose of Fitzgerald and Croghan to rob Cassullo.
The appellants contend that, as no evidence of the commission of an independent felony is brought home to them, the prosecution must fail. (People v. Marendi, 213 N.Y. 600, 611.) Evidence may, however, be circumstantial, as well as direct, and a verdict may be the result of justifiable inferences.
The theory of the People is that Ryan advised and *Page 307 counseled the commission of the felony by planning and counseling therein before its commission and that Venetucci aided and abetted therein by accompanying Fitzgerald and Croghan, who did the actual killing, to the neighborhood of the Cassullo store and bringing them away after the killing.
Ryan lived on West Fiftieth street. He and Michael Hynes ran a speakeasy a few doors away. On the night of December 7th, both appellants and Fitzgerald and Croghan were in the speakeasy. Hynes testified that at that time there was a discussion as to a likely place to stage a robbery. Both appellants knew of the store of deceased and of his habits. Both advised the other two that Cassullo's store was an easy place to rob.
On the following afternoon Fitzgerald and Croghan came to Ryan's apartment with two revolvers, one of 32-calibre and one of 38, which were left, secreted in the inverted globe of a chandelier by either Ryan or Venetucci.
Ryan had in his possession a stolen automobile, ownership of which was claimed by him and his partner Hynes. In the confessions of both of the appellants it is admitted that all four of the alleged participants were again together in Ryan's apartment early on the morning of December 8th. This is testified to by a Miss Partridge and a sister-in-law of Ryan who were staying there. In both confessions it is stated that Ryan again said that the Fifty-ninth street place was easy. He picked out the place and told them to go there as a place where they could get some dough. The two pistols were given to Fitzgerald and Croghan in the presence of both appellants, and about five-thirty o'clock they left the apartment with them. They walked toward Fifty-ninth street, nine blocks away, Venetucci following them in a stolen car, which belonged to Ryan and Hynes, who had loaned it to them. About half an hour later Venetucci picked them up on Fifty-ninth street and they came back to Ryan's apartment where the revolvers were again secreted in the chandelier. *Page 308 Venetucci threw exploded shells down the toilet. Nothing seems to have been obtained as a result of the expedition, and the confessions disclose that while there was no actual agreement as to a division of anything which was to be obtained, Ryan expected a part if anything was obtained. Fitzgerald and Croghan told Ryan when they returned to his apartment, and Venetucci when they got in his car, that they had to shoot.
A 38-calibre bullet was found on the floor in the store of Cassullo. It had passed through a box of raisins and was flattened. A 32-calibre bullet was extracted from the body of the deceased. There were no blood stains either in the store or the place where the deceased was found. The autopsy showed considerable internal hemorrhage. The deceased was a large man, weighing about 240 pounds. After several searches the police found the two revolvers in Ryan's chandelier, but this was not until after they were located through information obtained from the confessions. The deceased was found about eight feet from the door of the store, which was closed.
Summarizing this evidence, we find that both appellants knew of the deceased and knew that he opened his store about six in the morning. Fitzgerald and Croghan, who took the revolvers, had conferred with the appellants in regard to the proposed robbery of the deceased. They were advised by Ryan, at least, that such robbery would be easy.
The evidence points to an intent to commit an independent felony with the aid and advice of both appellants. It places Croghan and Fitzgerald in close proximity to the spot where the robbery was planned to take place. The deceased was killed by a 32-calibre bullet. Croghan and Fitzgerald had a pistol of such calibre. Going to Fifty-ninth street thus armed is inconsistent with any innocent purpose. It is possible but most improbable that the killing of Cassullo was committed by others than Fitzgerald and Croghan, but it is impossible to disregard *Page 309 the errand on which they set forth from Ryan's. It could well have been found that the felonious intent with which they left Ryan's and which both defendants shared was continued and carried out, and that in the execution of such intent Cassullo was shot and killed.
As threats to commit a crime are constantly received in evidence as circumstances tending to connect a person with the crime (Stokes v. People, 53 N.Y. 164, 175), so plans to commit a crime may be received to connect a person with the crime thus planned. Had defendants said that they were going themselves to rob Cassullo, and Cassullo had been thereafter found killed, the inference would be reasonable that they had attempted to rob Cassullo and in the execution of such an attempt had killed him.
The evidence of a commission of a felony, although circumstantial as against defendants, is sufficient. It is impossible to disregard the part which defendants had in sending the actual killers to the Cassullo store in order to clothe them with the presumption of innocence at the conclusion of the evidence. The jury might properly draw the inference that a felony was committed and that defendants were acting as accessories thereto. (People v. Sullivan, 173 N.Y. 122, 132;People v. O'Neill, 260 N.Y. 523; People v. Raffaele,233 N.Y. 590.) It is not to be imagined that Fitzgerald and Croghan changed their purpose and went off towards Cassullo's armed, to buy peanuts or soda water.
Defendants argue that evidence that Fitzgerald and Croghan told Ryan and Venetucci in effect that they had to kill a man, that they had both fired, was improperly admitted on the ground that such declarations were made after the so-called conspiracy to rob had come to an end. (Logan v. United States, 144 U.S. 263,308.) Such declarations accompanied the return of the revolvers by Fitzgerald and Croghan to the Ryan apartment and the concealment thereof therein. They were not offered as *Page 310 an admission that Ryan had engaged directly in the commission of the felony. It was competent in order to show that Ryan was aiding and abetting in the commission of the felony to show that the revolvers were taken from his apartment and returned thereto. The accompanying statements either were competent or, if not competent, were not prejudicial. They merely informed defendants of that which they were bound to expect, that if they sent out armed men who were intending to commit a felony, a killing would be "the natural and probable result" of such a criminal undertaking. (Ruloff v. People, 45 N.Y. 213.)
We have examined the entire record to discover error which would require reversal and find none which would "affect the substantial rights of the parties" (Code Crim. Pro. § 542). We are not unmindful that moral certainty of guilty participation by these defendants does not justify an affirmance of the judgment unless their guilt is established by competent evidence (Code Crim. Pro. § 3), but we are not bound in this case to reverse in order to prevent injustice. Defendants have been fairly tried. The jury has disposed of all questions of fact. Cassullo is dead. To do justice, we should give all the evidence a fair and reasonable meaning. Reading the evidence as reasonable men, drawing reasonable conclusions therefrom, we cannot find that there is no evidence of guilt to sustain the verdict.
The judgments of conviction should be affirmed.
KELLOGG, O'BRIEN and CROUCH, JJ., concur with LEHMAN, J.; POUND, Ch. J., dissents in opinion in which CRANE and HUBBS, JJ., concur.
Judgments reversed, etc. *Page 311