People v. Feolo

*384 Loughran, J. On September 14,1931, Sergeant Timothy F. Murphy of the police department of the city of New York was shot and killed when he interrupted three persons in their commission of a robbery in a speakeasy on East Thirteenth street, Manhattan. Six years later, Emilio Funicello informed the authorities that the robbery in the speakeasy had been committed by Joseph Feolo, Norman Brabson and Carl Summerfeld at the instigation of Albert Mastrone. These four were thereupon indicted for murder in the first degree. On a first trial the jury disagreed. A second trial resulted in a judgment of death which this court affirmed as to Summerfeld but reversed as to Feolo, Brabson and Mastrone (People v. Feolo, 282 N. Y. 276). After a third trial of the indictment as against Feolo, Brabson and Mastrone, they now stand convicted a second time of this felony murder. As on the former appeal, the testimony of Funicello makes the greater part of the record and constitutes a report of various admissions which he said were made to him by one or more of the defendants. “ Without his testimony,” as the trial judge told the jury, “ there would be no case made out against these defendants, or any of them.” Whether Funicello was an accomplice in the robbery at the speakeasy was a question of fact. In leaving that question to the jury, the trial judge said: “ He *385 denies that he was an accomplice, and if you are convinced beyond a reasonable doubt that he was not an accomplice in the commission of this robbery, then his testimony needs no corroboration * * *. I charge you as a matter of law that if you find that Funicello was an accomplice in the commission of the crime, then his testimony must be supported by other evidence which tends to connect the defendants with the commission of the crime.” (See Code Crim. Proc. § 399.) How this issue as to Funicello’s status as a witness was composed by the jury we cannot know. Hence, we are called upon to say whether on this record the verdict may be taken as a valid finding that Funicello’s testimony was sufficiently corroborated as against each of the three defendants. If as to any defendant the answer is in the negative, the judgment as against him cannot be upheld on the speculation that the jury found Funicello was not an accomplice. (See People v. Lazar, 271 N. Y. 27.) Detective Thomas Morgan of the police force of Pittsburg, Pennsylvania, arrested Brabson in that city in November, 1937. Morgan testified that on the day of the arrest a brother of Brabson came to the Pittsburg detective bureau where (as Morgan said) “ the brother questioned what he [Brabson] was arrested for, and the defendant answered the brother, he says, ‘ On a murder charge that happened about six years ago in New York City.’ He stated — he said to the brother, he said, 11 thought it blew over, but finally ;oing back to New York City on that charge.’ ” In j 'gment, it would have been proper to submit to the e question whether the testimony of the witness was sufficient to warrant as against Brabson the i ■ that Funicello told the trüth when he testified '.o and Brabson came to him on the day Sergeant A was murdered and said that with Summerfeld t committed a robbery and “ killed a cop * * * d ast 13th street at that place that Al [Mastrone] gi tip to.” *386 In the same part of his testimony, Funicello further quoted Feolo in this manner: “ He [Feolo] said he searched one fellow and took a pocketbook off him, took the money out of it and threw the pocketbook on the floor.” Philip Albert was in the speakeasy when the robbery and homicide were committed. - He testified he handed over his wallet containing forty or forty-five dollars to one of the robbers. The People contend that this evidence of Albert confirms Funicello in bis testimonial report of Feolo’s admission that Feolo took a pocketbook off one fellow at the speakeasy. I think this contention must be rejécted. The corroboration of an accomplice must in some degree confirm him in his designation of a defendant as one who was connected with the commission of the crime. (People v. Hooghkerk, 96 N. Y. 149, 162.) All the witness Albert said was that somebody in the speakeasy robbed him of his wallet. I cannot see how that evidence tended to connect any identifiable person with the killing of Sergeant Murphy — if the testimony of Funicello is cast out. Police Officer Frederick Knocke testified that in a nearby street he was shot and wounded by a man who ran from the speakeasy at the time Sergeant Murphy was killed. On his direct examination, Officer Knocke said of Feolo: “ I see the man that looks like the man that shot me.” On his cross-examination the officer said: “ Well, there is something about this man that you can't forget; it was one of those things, you can remember his face a lifetime.” The real character and meaning of this testimony of Officer Knocke was, as I believe, correctly declared by the trial judge in these words: “ He has not identified Feolo as the man that shot him. He said he only looked like the man who shot him.” Funicello testified that (antecedently the events in issue) he overheard Mastrone plan a robbery that was to be committed in the speakeasy by Feolo, Brabson and Summerfeld. For corroboration of Funicello in that charge against Mastrone, the People offered testimony of an Assistant District Attorney that in July, 1938, Mastrone (who was *387 then in custody) volunteered the statement that in February or March, 1931, he had pointed out the speakeasy on Thirteenth street to two other men. “ He told us [the Assistant District Attorney testified] that at that time his idea was that the place was to be shaken down, that they were going to impersonate Federal officers and extort money from the proprietor because he was conducting a speakeasy.” In the same interview, as reported by the Assistant District Attorney, Mastrone denied participation in the robbery which brought about Sergeant Murphy’s death. The People make the argument that Mastrone’s “ admission that he pointed out the place as a likely spot for the commission of a crime — in spite of his self-serving declaration that he merely intended a ‘ shakedown ’— supports Funicello and his testimony.” This, I think, is a dubious proposition. It is true that the jury were not constrained to accept Mastrone’s extrajudicial assertion that the place was only to' be shaken down. But if that assertion was disregarded, then Mastrone’s admission amounted only to a concession that he had pointed out the speakeasy to two men. The foregoing states the whole of the proof relied upon by the People for confirmation of Funicello’s testimony. Except as against Brabson, this corroborative evidence was, as I see it, of little more than conjectural significance. In respect of the sufficiency of that proof, the trial judge in his charge said to the jury: “ It is for you to say where he [Funicello] got the information concerning the robbery as to which he has testified. He alleges that he got the information from the defendants on trial. Does his testimony as to what transpired at the scene of the robbery agree with the testimony of the inmates of the place, and of Officer Knocke as to what happened during and immediately after the robbery was perpetrated? ” For reasons already suggested, I think such a test of the credit of Funicello as an accomplice-witness was inadmissible. Since neither Officer Knocke nor any person who was in the speakeasy at the time identified any of the defendants as *388 a participant in the robbery, the mere agreement of their narrations with Funicello’s story was no demonstration of his trustworthiness. If Funicello was himself a participant in the robbery at the speakeasy, he «knew the facts of its commission and could readily enough have stated them in the form of the admissions he variously imputed to the several defendants. “A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the person, that is really no corroboration at all.” (Lord Abinger, in R. v. Farler, 8 Car. & P. 106; quoted in Wigmore on Evidence [3d ed.], vol. VII, § 2059, p. 327. See 2 Bishop’s New Criminal Procedure, § 1170.) This test of the sufficiency of corroborative evidence — that it shall tend to connect an identifiable person with the crime — has been criticized as a fallacy. (See Wigmore, supra.) Our statute, however, has adopted that test (Code Crim. Proc. § 399; People v. Plath, 100 N. Y. 590; People v. Reddy, 261 N. Y. 479) and the Legislature has not been persuaded by arguments for its repeal. (N. Y. Leg. Doc. [1937] No. 77.) In respect of the needed corroboration of Funicello, the trial judge in his charge said to the jury: “ Independent and corroborative proof tending to connect the defendants with the commission of the crime is essential but need not be of great probative force.” This, it seems to me, was a misconception. “ The law of evidence undoubtedly requires that evidence to a jury shall be clearly relevant, and not merely slightly so.” (Thayer, Preliminary Treatise on Evidence, p. 516.) More than that, our statutory requirement of corroboration is predicated of the uniform common-law custom of judges to advise the jury that the evidence of an accomplice should be received with great caution. (People v. Hooghkerk, supra.) In my opinion, the jury should not have been instructed that corroboration of Funicello did not call for evidence of great probative force. I am impelled to the conclusion that this judgment (even as against Brabson) may well have been the result *389 of a wrong application of the statute which says that a conviction of crime cannot rest solely on the credit of a witness found to have been an accomplice. As to each defendant, the judgment of conviction should be reversed and a new trial ordered.