On July 25, 1916, Alexander Della Rosa, a native of Italy, was deliberately murdered upon Thompson street, in the city of New York. This defendant has been charged by a grand jury with having committed the crime, and has been convicted by a trial jury. His trial was fairly conducted by the learned trial judge, and to his charge to the jury the defendant’s counsel stated in open court' that he took no exception. By the verdict of the jury he was found guilty of murder in the second degree, and he has appealed to this court for a new trial, alleging that his guilt was not proven and that he was not tried according to law.
His first challenge to the judgment is that the verdict is against the weight of the evidence. Upon careful review of the evidence, I am of opinion that the record contains abundant evidence to sustain the conviction. In the first place, he is charged with the commission of the crime by two eye-witnesses. One Menichino, sixty-five years of age, saw the defendant fire the fatal shots. One of the shots, without intention, hit this witness. He knew the man and identified him positively. His evidence is undoubtedly weakened to an extent by some apparent contradictions and by testimony that upon the night of the murder he was confronted by defendant in the presence of two policemen, and then said that he did not know who fired the shots. But this conversation was through an interpreter (not sworn) and when the man was dazed by his own wound, and his apparent hesitancy in answering the questions then asked indicate either that he did not understand or that he was for some reason unwilling at that time to charge defendant. At the trial, however, he was positive in his charge, and the jury might well have believed his evidence then given. The son of the deceased also swore that he saw defendant commit the murder. His testimony is also to an extent weakened by the fact that bis testimony differs in some particulars from some other testimony in the case. Whether these discrepancies arose from the use of the interpreter or arose from a confused recollection of the event, he swore positively at the trial to the defendant’s crime, and I am not prepared to say that the jury may not have believed that in the main facts his evidence was wholly reliable.. I *842attribute no importance to the fact that he did not tell the police that night that the defendant was the man who shot his father. He was a very young boy, laboring under intense excitement, and might have been in fear of the officers of the law or of the friends of the defendant in whose midst he found himself, with his father, his protector, dead. His story was consistent both on direct and cross-examination, and the credibility of that testimony was for the jury to judge.
Again, the defendant was immediately before the shooting with his friend De Vito. He came out of the restaurant with him. The murder was committed directly in front of the restaurant. He swears that he turned one way and his friend the other. Almost immediately the shooting took place. De Vito saw the whole affair. He could have cleared his friend if innocent. Why was he not called? The defendant’s failure to.call his friend, who .could have cleared him if he had not fired the shots, was most suspicious, and the jury might have so considered it.
Again, the defendant’s conduct when arrested proved his guilt. He ran from the scene. When arrested and asked why, he said, “ I heard some shooting.” “ I am kind of nervous.” “ Wouldn’t you run if you heard shots? ” “ I
did not want to be mixed up in it.” Was this the conduct or excuse of an innocent man? But go a step further. When the second policeman came up and asked him why he shot the man he said, “ I didn’t shoot him; he is a friend of mine.” So it now appears that he did not simply “ hear some shooting.” He had seen his friend murdered in cold blood before his eyes and had run away because “ he did not want to be mixed up” in the matter. So much for his declarations. He swore upon the stand that although only a few feet from the place of the murder when he heard the first shot fired he did not look back but immediately ran away, and did not know who was shot, and yet, according to two witnesses, the two policemen, he said when asked why he shot him, that the murdered man “ is a friend of mine.” Notice, too, that this was to be his defense. When confronted by his dying victim at the drug store, he himself swears he said, “ He is my friend.” Is it to be wondered that the jury rejected his •story?
*843Again, after the murder this defendant at once ran down Thompson street and up Houston street for about seventy-five feet, when he ran into the arms of Policeman Schachne. It is clearly evident that he alone was running from the scene of the murder. Policeman Schachne had no trouble in picking out the man who was in flight. He went directly for the defendant and halted him. He then led him back four or five feet, when Policeman-Harson came up. Harson, who was following him, swears that he saw no one else running. When Harson came up he at once went past the defendant about four feet and picked up a gun, which was still hot. All agree that this was the gun with which the murder was committed. It must have been brought from the scene of the murder by some one quickly who had run to that point. This defendant was the only man running. It was picked up at the exact place at which defendant was arrested. It matters not that the policemen did not see him drop it. They were not watching his hands particularly. He may have carried the gun in his hands, or more likely in his pocket, and when arrested knew well the danger of having the gun found on his person. I say he was the only man running. When a man is running away there are always those who hasten then steps to keep him in sight to see where he may go, and this was apparently the case here. But the man well in the lead was defendant, and so far in the lead that Harson saw no others running. The heated gun was apparently picked up at once, before another could have reached the spot and dropped it. The inference is irresistible. The relentless logic of this heated gun found at the exact spot where defendant was halted in his flight almost immediately thereafter is what has closed the prison doors upon this defendant, and appellate courts are commanded by law not to open those doors except for substantial error committed upon the trial.
The dividing line between substantial error which calls for the reversal of a conviction and such error as may be disregarded, depends largely upon the conviction in the minds of the reviewing judges of the defendant’s guilt. If his guilt clearly appears, a failure to adhere strictly to legal rules will not vitiate a trial. It is the duty of courts to see that no innocent man shall suffer. No less imperative is the *844duty of courts to so enforce the law that it may prove a terror to evil doers, to the end that the lives of innocent citizens in the future may not be sacrificed.
What, then, are the errors claimed to be sufficient to reverse this judgment?
It is said that the court erred in not allowing the defendant’s counsel to ask the boy Luigi why he had not told the policemen at the time of the arrest that the defendant was the man who had shot his father. This question was proper, but in view of the age of the boy, of his shock in just having witnessed his father’s murder, of the natural fear in the minds of young children of the officers of the law, his failure to so state to the policemen becomes so immaterial as to be negligible.
It is said that the prosecuting attorney exceeded his rights, by stating in his opening, matter as proof of a motive in' defendant to commit the crime which he could not prove, and' also in cross-examination of defendant on side issues to an undue extent and on some issues which were entirely irrelevant to the issue of defendant’s guilt. As a criticism, the claim is good. It is most unfortunate for prosecuting officers to attempt to secure convictions by insisting upon procedure known by them to be irregular. Such a course should bé restrained and rebuked by the trial court. As a ground of substantial error, however, Ihe claim of appellant is not good. The object of the evidence was to show motive. The trial court instructed the jury that no motive for the crime had been proven, and in view of this charge, I think the acts of the prosecuting attorney were not so prejudicial as to justify a reversal of the judgment.
Again, it is claimed that substantial error was committed by the admission of evidence of the remark of a bystander that “ He ran over Houston street.” The policeman was after a man who was running away. That man was identified by that remark, and not the man who committed the murder. But the evidence was admissible as part of the res gestee. The crime and the immediate flight are necessarily linked together. The excitement attending a murder and the escape of the murderer are so intense that the remark was spontaneous or impulsive and unreflecting. It was done before there was *845time to contrive or misrepresent. It related to a part of the principal act. Again, the defendant swears that he and many others were running both ways; that some were running ahead and some behind him. If so, the remark could not have served as any identification of defendant. If, on the other hand, as is undoubtedly true, the defendant was the only man who was in fact running away, then he was the man who carried the heated revolver to the spot where he was arrested and where it was found, and his guilt is certain, and the jury was indeed lenient that it did not exact his life as well as his liberty.
The judgment should be affirmed.
Clarke, P. J., and Scott, J., concurred; Page and Shearn, JJ., dissented.