People v. Carlsonakas

Martin, J. On the morning of April 6, 1933, at Forty-second street near Eighth avenue, New York city, the complainant Chris Chris topos was stabbed. As a result thereof he was confined to a hospital for nineteen days. While walking toward his home from the subway station at Forty-second street and Seventh avenue, the two defendants set upon and assaulted him with knives. Although he attempted to leave the "scene of the fray and tried to protect himself, he was cut on the arm and on the left thigh and was still being attacked when the assault was stopped by a deputy sheriff. [233] Charles Weinberg, a friend of the complainant, testified that he had left a moving picture theatre and was going to work when he saw the defendants attack the complainant. Each defendant had a knife. The witness said he thought that the defendant Flessas struck the first blow. Two very important disinterested witnesses were produced by the People, Deputy Sheriff Kerr and his friend Thomas Carr. They both testified that they were standing outside a restaurant on Forty-second street near Eighth avenue when their attention was drawn to the complainant, who was running around the rear of a taxicab pursued by the defendants, each of whom had a knife in his hand and was striking at the complainant. The witness ran to the place where the assault was in progress. Kerr drew his revolver and caused the defendant Carlsonakas to drop his knife into the gutter where it was found by a man named Creedon, a friend of Deputy Sheriff Kerr. The witness Carr testified that he struck Flessas on the jaw and then the defendants submitted and were taken to the police station house. Detective Meehan said he questioned the two' defendants while there and they told him that some time prior to the fight the defendants and complainant were engaged in a card game and some “ funny cards ” were used, as a result of which a fight started and the complainant struck the defendant Carlsonakas. The defendants then told the detective that on the morning in question, April sixth, the complainant first talked to them and then attacked and struck Carlsonakas, but said they did not know anything about the knives. The defendant Flessas testified in his own behalf. He said that the complainant on the morning in question approached the defendants, placed his hand in his pocket, took out a knife and ran toward and attempted to assault them. The witness said he struck the complainant causing him to fall and that the deputy sheriff stopped the fight. He denied that he stabbed the complainant. The jury convicted the defendants upon the testimony of Kerr, Carr, Weinberg, Detective Meehan and the complainant. We have referred to the evidence to show that there was no doubt about the identity or guilt of the defendants. The overwhelming evidence clearly established both The defendants now appeal, contending that the court committed prejudicial error in admitting and excluding evidence, in its charge to the jury and in remarks made during the trial. The defendants argue that they did not receive a fair trial, especially in view of the charge of the trial judge. It is asserted that he went far beyond the bounds of propriety and made it clear that there was no question [234] about the guilt of the defendants, insinuating that the jury should not devote much time to a consideration of the case. There is no doubt that the statements by the trial court at the beginning of the charge to the jury might well have been eliminated. They were unnecessary and in a closely contested case might be considered prejudicial to the interests of a defendant. However, in view of the fact that the evidence is so overwhelming and the proof of guilt so conclusive, we think the judgment of conviction should be allowed to stand. Several other matters occurred during the trial and the charge which at the time were apparently considered of no importance, but are now urged as a ground for the reversal of this judgment. Frequently during a trial insignificant incidents occur which are later magnified in the hope of securing a reversal of the judgment. At the time these alleged errors arise they are of no passing moment and are either wholly unnoticed or entirely disregarded. If these same matters were then called to the attention of the court they could be corrected or readily remedied. It is unfair to a judge presiding at a trial to pass over such occurrences at the time as insignificant and then rely upon the same for a reversal of the judgment. Every right-thinking person approves of the principle that a defendant should be given a fair trial and that there should be no question about its fairness. On the other hand, the trial of criminal cases should not be made so technical that it will be impossible to conduct one without falling into reversible error. We occasionally find that incidents which occur on a trial, when called to our attention on appeal are so enlarged upon that they must be very much discounted. The contention of the defendants that they were prejudiced by an unfair trial is without merit. It should be noted that counsel in nowise specifies in what way the jury might have been affected by the actions of the court during the course of the trial. While the record may contain apparent errors, they surely cannot be deemed sufficient to require a reversal of the judgment, in view of the strong case presented by the People. (See People v. Ferola, 215 N. Y. 285; People v. Trybus, 219 id. 18, 23; People v. Sarzano, 212 id. 231.) We have recently had occasion to call attention to the fact that the trial court should be impartial in the trial of all cases. The decisions on this subject are so numerous and so emphatic that it seems unnecessary to call attention to the statements set forth therein. It may be that in a desire to prevent the acquittal of the guilty, a court at times may be of the opinion that it is necessary to impress the facts on the jury. Under our system of jurisprudence, [235] the court is not permitted upon the trial or in the charge, to unduly interfere with the functions of the jury. All questions of fact are for the jury. The court must state the law, but it is not permitted directly or indirectly to express an opinion to the jury. The trial judge may be impatient with a defense, but he should not indicate such impatience by remarks made during the course of the trial or in the charge to the jury to the prejudice of a defendant. The trial should in fact, as well as in theory, be fair and impartial. We do not believe it should be necessary to call attention to the manner in which cases should be tried. The trial of a criminal case in most instances is a simple matter and any judge should be able to conduct it without any difficulty. In fact, a case of this character may be quickly disposed of if the facts are placed before the jury in a clear and concise manner, with a simple, intelligent statement of the law applicable thereto. The trial of an action is a search for the truth so that principles of justice may be applied to the facts. That result may be accomplished by following time-honored rules and precedents which have served the purpose very satisfactorily for many years. Applying section 542 of the Code of Criminal Procedure, which permits the affirmance of a judgment where no substantial right of a defendant has been prejudiced, we are of the opinion that this judgment should be affirmed. The defendants were proved guilty beyond a reasonable doubt and the conviction should, therefore, be affirmed. Finch, P. J., and Merrell, J., concur; O’Malley and Untermyer, JJ., dissent and vote for reversal and a new trial.