People v. Maione

Loughran, J. The defendants have been convicted of murder in the first degree. The principal witness for the People was Abraham Reles, a confessed principal in the crime. His account of the commission of the murder was in many particulars in agreement with undisputed testimony of other witnesses in respect of the condition of the body of the deceased and of the circumstances under which it was found by the police. Such independently established external facts had in themselves no tendency to connect any identifiable person with the crime. In his charge to the jury (quoted in the dissenting opinion), the trial judge included those facts in his enumera, *425 tion of fifteen items of evidence which he said could — if credited by the jury — be accepted by them as corroboration of Reles. This, we think, was error. Counsel for the defendant Maione say in their brief: “ Most of the items of testimony referred to by the court * * * cannot be regarded as corroborative of Reles’ testimony, inasmuch as they do not tend to connect the defendant with the commission of the crime. * * * Which of the items the jury found to be established by the evidence and accepted as corroboration is, of course, a matter of Speculation. It is therefore no answer to say that some of the items were competent corroboration * * *. One thing about which there can be little doubt, however, is that some of the items which did not constitute corroboration must have been found by the jury to have been established by the evidence * * *. These items had reference to the physical facts of the crime, as to the existence of which facts there is no controversy. They were of such an undisputed character that their inclusion in the court’s charge as items of corroboration was tantamount to an instruction that no corroboration was required at all.” The error so complained of cannot, we think, be dismissed as immaterial. In effect, the jury were told by the court that evidence in corroboration of an accomplice need not extend beyond the corpus delicti. Approval of that proposition would virtually cancel section 399 of the Code of Criminal Procedure. Section 399 requires that an accomphce must in some degree be corroborated in his testimony that an accused was implicated in the commission of the crime. Evidence which merely shows that the crime was committed in the fashion described by an accomphce is not such corroboration. (See People v. Feolo, 284 N. Y. 381, decided herewith.) The judgments of conviction should be reversed and new trials ordered.