People v. . Zigouras

*115 Landon, J. The defendant, a Greek, a maker of flowers, on the 18th day of February, 1899, in the kitchen where he at the time was serving his employers, Nicholas and Minaky, as cook, on Fifteenth street in the city of New York, in the presence of a Frenchman named De Varney, fired four pistol shots into the body of another Greek named Ferantos, also a maker of flowers, and killed him. This is not denied. The defendant and his counsel admit it. De Varney was a music teacher, disabled at the time by a broken arm. He and Ferantos roomed together on Thirteenth street. He did not understand Greek. He testified that about twenty minutes before the shooting took place Ferantos and himself having that forenoon already made some calls in a social way at places where one or the other was familiar, at the suggestion of Ferantos called upon the defendant; that the defendant greeted Ferantos and talked with him in Greek, but did not speak to the witness; that after about five minutes the defendant placed a plate containing a stew upon the table, gave each one of them a fork and invited them to eat. This they did, each sitting upon a separate small bench. Another Greek named Floris came in, and the defendant served him with a stew and then went outside. While Floris was eating his stew Ferantos asked him to go out and get him a pint of beer, and gave him the money to pay for it. Floris went out and got the beer and gave it to Ferantos,' and sat down and finished his stew and went out; that then the defendant came in and passed between the witness and Ferantos through an open door into an adjoining bedroom, where the defendant usually slept, and, without saying a word, fired from the bedroom upon Ferantos while he was sitting upon the bench drinking the beer; that Ferantos fell off the bench upon the floor, and the defendant then advanced and fired the other shots into his body as Ferantos lay there. De Varney testified that before the shooting there was no appearance of hostility or unfriendliness between the defendant and Ferantos. Floris left before the shooting and did not hear it. He corroborated *116 De Varney as to what occurred while he was in the defendant’s room. The defendant was soon after arrested and taken to the police station, where he was examined, through one Sperco, ah interpreter, by the police captain or in his presence. The captain wrote down the defendant’s statement as the interpreter rendered it and the defendant signed it. It is as follows: 1 " Police Department of the City of New York. “ Precinct No. 19. “ New York, Feb. 18, 1899. “ 6:45 p. m. John Zigouras states through interpreter that about three days ago Peter Minaky gave him $13 to buy a revolver. And when Ferrando would come in our room to shoot and kill him. The next day in the room Peter Minaky and myself were talking over the matter. Afterward, on the street, I met Nickelos, who told me that Minaky had gave me money to buy a pistol, and to go ahead and shoot him. Peter Minaky told me he would get a lawyer to defend me, and nothing more would be heard about it. Both Nickelos and Minaky advised the killing of Ferrando, and aided me by advancing money to buy the pistol with which I did the killing. Personally I never had trouble with Ferrando, or no cause to injure him. I did it to please Nickelos and Minaky. “ JOHN ZIGOURAS. “ Sworn to before me this day at ) 7:22 p. m., February 18, 1899. f “ Walter L. Thomson, " Inspector of Police.” The defendant was a witness in his own behalf on the trial. He testified that he did make the above statement to the interpreter at the police station, except that he did not say that he shot Ferantos to please Nickelos and Minaky. He testified that a young Greek, a stranger to him, not the inter *117 preter Sperco, first came to him in the police station and talked Greek to him, and advised him to make such a statement. He also testified: “ I was very much frightened, and I didn’t know where I am, and in what condition I am, and that man talked to me in Greek and I told him the story, and he said, ‘ You are a fool to tell it in that way.’ ” That a young Greek, not produced as a" witness, did converse in Greek with the defendant at the police station, before Zerco, the interpreter, arrived, was shown by other witnesses. The police captain tried to use him as an interpreter, but he spoke English so imperfectly that the effort was abandoned. The policeman, Casassa, who arrested the defendant, testified that the young Greek interpreted the defendant as saying that “ when Ferantos came into his room the defendant told him to get out, and instead of getting out Ferantos took a weapon and went to hit him, and that he then took the pistol from his pocket and shot him.” Several witnesses testified to the effect that the interpreter Zerco was directed to inform the defendant that he need make no statement, that it could be used against him, and the interpreter, Zerco, testified that he did fully so inform him. The defendant did not testify at all upon this point. The defendant in his testimony gave substantially the same version as did De Varney of what took place in the kitchen up to the time that Floris finally left it. He testified that thereupon Ferantos said to him: “You will give me ten dollars,” and defendant replied, “ I haven’t got ten dollars to give you. When I had money, I always gave it to you, but I haven’t any now to give you.” That Ferantos then said in Greek, referring to De Varney, “ This here is a detective, a detective policeman, who is with me,” and defendant again said, “ I haven’t any money to give you.” That Ferantos then told De Varney to lock the door, and De Varney got up and put his back against it, and then Ferantos said, “ Now, you will give me ten dollars or I will take your head,” and that he took a poker belonging to the stove and lifted it up as if to strike him, and again said, “ You *118 will give me ten dollars, or I will take your head.” That the defendant then said, “ Don’t kill me, don’t kill me, Mr. Ferantos,” and shouted “ Help! help! ” That the defendant retreated into his bedroom followed by Ferantos, who held the poker so as to strike him, and that defendant then took his pistol which was under his pillow and shot Ferantos. He added, “ I thought that if I did not, he would kill me.” The defendant was corroborated as to his cry for help by one Manoucas, also a Greek, who testified that he heard his cries, and recognized his voice, but the jury evidently did not believe him. No poker was found in defendant’s rooms; a broken beer glass was found under the body of Ferantos as he was lifted up; a search disclosed that Ferantos had some money, a diamond stud, a watch and chain, but no weapon upon his person. The autopsy tended to show that at least one of the shots was fired into the prostrate body of the deceased. Ferantos was large and tall; the defendant, a small man. Evidence was given tending to show that Ferantos’ character for violence was bad, and that the defendant’s character was good. The case was clearly one for the jury, and but for the exceptions now to be noticed, the judgment should be affirmed. One Kusobalos, a witness for the defense, testified that the character of the deceased for violence was bad. On cross-examination by the People the witness testified that he had considerable feeling against the deceased,'and added, “ I don’t like him, because he treated me very badly. I treated him well; I gave him to eat and drink. He nearly killed me in his room.” Question: “ You had a little trouble with him?” Answer: “ Yes, sir; I was afraid of him,” and he pointed to a scar on his own forehead. Redirect: “ I ask you to state what that trouble was.” Objection. Sustained. Exception. The trouble was a new fact brought out by the People upon cross-examination. Confessed and unexplained, it tended to impair the force of the direct testimony. The trouble stated and understood might have removed or lessened the discredit *119 which it tended to produce; might have restored the direct evidence to its original force, and possibly have increased its force. It was clearly competent. The general rule is that a witness may upon redirect examination explain the new facts brought out upon cross-examination. People v. Buchanan, 145 N. Y. 24; Clark v. Vorce, 15 Wend. 193. The main objection to permitting this explanation is one of convenience. Of course the trial should not be prolonged or the real issues obscured by the trial of false or immaterial ones. This calls for the exercise of good sense upon the part of the trial court in limiting the details of the explanation, but it does not call for its exclusion. The cases cited tending to support the latter proposition are of other jurisdictions. While the range in details to which the re-examination may extend should rest largely in the discretion of the court, to the end that immaterial issues may not arise, enough should be permitted to prevent a part of the truth from conveying a false impression. We cannot say that the defendant’s case was not prejudiced by the ruling. The defense requested the court to charge the jury “ That they may consider, in determining as to whether the defendant had reasonable grounds for believing that he was in imminent danger of death or great personal injury from the deceased, that the deceased, prior to the shooting, had made threats to the defendant that he would kill or injure him.” The court said, “ Refused, because the basis for making it is not borne out by the evidence.” We have already set forth the testimony of the defendant as to the threats made by Ferantos immediately before the defendant shot him. The threats of the deceased, if the jury should have found that there were such, should have been considered by them in determining whether the defendant had reasonable grounds for believing that he was in imminent danger of death or of great personal injury. The defendant would naturally act upon appearances, and the law judges the act from the standpoint of the defendant’s reasonable apprehensions from the *120 appearances. To hold that there was no basis in the evidence for such a request might have been understood as holding that the., defendant’s testimony was not true. It is suggested that the court could understand the request as referring to threats upon some former occasion, of which there was no evidence. Such misunderstanding by the court would no less prejudice the defendant. This is a capital case. The evidence presents a crime of naked and motiveless enormity. The defendant’s previous good character is so attested that we naturally look for some justification or excuse. The defendant proffered the justification or excuse of threatening acts of violence, made more alarming by the threatening words accompanying them, and he properly asked for an explicit instruction as to his right to act according to the import of the threatening words. It may be that other parts of the charge can be construed as covering and complying with this request. But the difference between a direct charge upon this point and a general charge in which the point needs to be discovered and identified by constructive processes, may involve the life of the defendant. It is quite possible that this case has another side than the one upon which the defendant has been convicted; therefore, we should not be swift to destroy, but indulgent rather to the defendant’s prayer for another trial. We think that for these errors a new trial should be granted. In view of a new trial, we think it proper to say with respect to the written statement signed by the defendant at the police station, that upon the whole evidence touching it, it is far from clear as a matter of fact, still less as a matter of law, it was voluntarily made. It was received in evidence before the defendant had testified respecting it, and without any request by his counsel that he should be permitted to testify. In this respect the case differs from People v. Fox, 121 N. Y. 449, and we do not hold that it was error to admit the statement. But in view of the testimony subsequently given by the defendant respecting it, we think it was the defendant’s *121 right to have it submitted to the jury whether the statement was a voluntary one, with the instruction to disregard it if they should find that it was not. The statement charges Minaky and Nickelos with instigating the murder, and furnishing defendant with money to buy the pistol to accomplish it. Minaky was a witness for the People and testified that he furnished the defendant with no money to buy a pistol, but was not asked respecting his alleged instigation. Nickelos was not called. Apparently this part of the defendant’s written statement was assumed to be false. Defendant testified that it was. But if so assumed, the testimony of the defendant as to his motive or the provocation given him is all that remains to show why he shot the deceased. The case in this respect is quite unlike People v. Meyer, 162 N. Y. 357. There the confession of the defendant was so completely in harmony with all the facts and circumstances otherwise proved as to carry conviction to the mind that the defendant voluntarily made it, because, as he in effect expressed it, it was of no use to make a denial or tell anything but the truth, because the facts spoke for themselves. The defendant did not request that the question whether the statement was a voluntary one be submitted to the jury, and thus perhaps waived his right. We need not decide, as upon a new trial the question may not arise. The testimony of the witness Manoucas, to the effect that Ferantos and a Frenchman called upon him in Sixteenth street the day of the homicide between noon and one o’clock, and' that Ferantos said, “ Now I will go to a place in Fifteenth street and I will ask for ten dollars from the man there; then if I do not get the ten dollars, I will break the umbrella on his head, and I will make his head as soft as dough,” was stricken out upon the objection of the People, apparently because the man referred to was not identified with the defendant. At the time of this ruling the identification was not so clear as it afterwards became. It is probable that upon another trial, if the testimony is desired, the identification will *122 be made in due time. If it is true that the case has no mitigating features, another trial will more clearly show it. The judgment of conviction should be reversed and a new trial granted.