
    Court of Appeals.
    
      February, 1891.
    PEOPLE v. TREZZA.
    
    Murder—Review by Court op Appeals—Code Crim, Prog. § 528.
    The appellate court, in the absence of exceptions, is not authorized by section 528 of the Code of Criminal Procedure as amended by L. 1887, ch. 493, to interfere with the finding of a jury in a criminal case when supported by sufficient evidence, unless it appears from the whole record that injustice has been done.
    Where a homicide has been committed under circumstances showing deliberation and premeditation, it is immaterial whether the crime proceeded from some motive not disclosed, or from general depravity and reckless disregard of human life. In either case, in the absence of lawful excuse or justification the crime is murder in the first degree. ■
    The evidence in the present case considered and held to show the commission of murder in the first degree.
    Appeal by defendant Nicola Trezza from a judgment of the court of sessions of Kings county entered upon a conviction of murder in the first degree.
    The facts fully appear in the opinion of the court.
    
      A. H. Daily for defendant, appellant.
    
      James W. Ridgway, district attorney ; Jno. F. Clarke, assistant, for the people, respondent.
    
      
       See the same case, 8 N. Y. Crim. Rep. 291.
    
   O’Brien, J.

The defendant was convicted in the Kings county court of sessions of the murder of Alexander Salvano at the town of Flatbush, one of the suburbs of Brooklyn, on the sixth day of April, 1890. There are no exceptions in the record that raise any question of law upon which the defendant is entitled to a new trial, and as we are not authorized by the provisions of chapter 493 of the Laws of 1887 to interfere with the finding of the jury when supported by sufficient evidence, unless it appears from the whole record that injustice has been done, it is unnecessary to give more than a brief summary of the facts upon which the judgment rests (People v. Cignarale, 110 N. Y. 23 ; 6 N. Y. Crim. Rep. 82 ; People v. Kelly, 113 N. Y. 647 ; 7 N. Y. Crim. Rep. 40).

The day that the homicide was committed, which was Easter Sunday, the deceased was at his house in Flat-bush with his family, consisting of his wife, his sister, a married daughter, and her husband. In the afternoon a friend and acquaintance of the deceased, named Felicia Delucca, called, and was present when the deceased was killed. About five or six o’clock in the evening the defendant knocked at the door of the house and entered. The day was being observed by the deceased and his family and the friend who called, in-a festal manner, and the defendant shortly after entering the house was invited by Salvano to partake of some of the eatables on the table. The defendant declined, saying that he was not hungry, but wanted something to drink, and suggested to deceased to send for some beer. Some one of the family was about to go for the beer, when the deceased again requested the defendant to eat something. The defendant said, in substance, that he did not come to eat orto drink, but to “ kill you or somebody else,” and he said, with an oath, “ I won’t go out of here unless I do somebody harm.” Then, according to the testimony of the prosecution, he struck the table, and took a piece of meat on the fork, saying, “ The way I eat this beef I eat somebodys blood.” The deceased asked him if he “was fooling,” and the defendant repeated with an oath, “I mean to do it.” The deceased.told him : “ You had better go away about your business, Nick, because this is Easter Sunday evening; there is no need to make ■ trouble.” The defendant again said, “ I have come over here to do some people harm.” After ordering the defendant out of the house, and some more words, the deceased took hold of him to put him out, and the defendant walked out of the door, which had been opened. While the defendant was going out he was seen to draw a five-barrelled revolver from his pocket, and adjust it under his coat-sleeve. When outside the door the defendant turned around facing the deceased, who stood in or just outside the door, and about six feet away, and drew the revolver from his sleeve, and fired two shots at the deceased and another shot at his son-in-law. At the time of firing the pistol the defendant said, “ I will kill you first, then I will kill everybody in the house.” A bullet from one of the shots aimed at the deceased passed through the heart, causing almost instant death. The third shot, which was aimed at Frank Murri, the son-in-law, passed through his clothing without injuring him. After firing these three shots, the defendant turned and fled, with the revolver in his hand. He was pursued by Murri, the son-in-law, and Delucca, and after running about a hundred feet he turned, and fired another shot at them, without effect. He continued to run until he reached the Boulevard, when he turned and ran back in the direction of the house where the deceased lay. When within about 100 feet of the house he tripped and fell, and was then caught by Delucca, and after some resistance, disarmed.

These facts are testified to by the sister of deceased, the son-in-law, and Delucca, who were all present, and witnessed the interview which resulted in the death of Salvano. The wife and daughter of the deceased were also in the house when the defendant came there, but it seems had stepped out, before the threats and the shooting, to accompany some one to the cars, and, hearing the report of shots when about half a block away, returned and found him dead.

The principal witnesses on both sides were Italians, unable to speak the English language, and their testimony had to be taken through an interpreter. From an examination of the record, it would seem that the witnesses were unable or unwilling to fully relate the details of what occurred during the time that the defendant was in the house, which must have been, at least, half an hour; and the case for the people does not disclose any motive for the defendant’s acts. But it was not denied that the defendant intentionally and deliberately fired the shot at Salvano which produced his death. On the contrary, this is admitted by the defendant himself, who claimed that he acted in self-defence. The evidence on this point presents an irreconcilable conflict between the witnesses for the people and those for the defence. It is apparent that either one or the other set of witnesses testified falsely. The defendant is the principal witness in support of the claim that the homicide was committed in self-defence.

In substance, he testified that on the evening in question he was passing the- house of the deceased in company with two friends; that he requested the friends to remain outside while he went in and greeted the deceased and his family ; that he went in, and his friends remained outside; that after the greeting the deceased invited him to have something to eat, but the defendant declined, saying that he was not hungry ; that the deceased became angry at this, and commenced to break the dishes, and throw them on the floor.

The wife of the deceased then became angry on account of the breaking of the dishes, and requested her husband to let the defendant go away, and then scratched the defendant’s face ; that the defendant, when about to leave, and in fact when outside the door, was set upon by the deceased, his sister, wife, and other members of the family, with chairs and sticks ; that he received a blow on the back of the head from some one of them with a chair or stick, and that the deceased had a gun, which he fired at the defendant, while he was surrounded by the other members of the family, who had followed him out of the house. The defendant’s statement is that then he fired the shots that killed the deceased.

The testimony of the two other persons was, in substance, that they were in company with the defendant till he reached the house of the deceased ; that then the defendant said he wanted to go in and bid the deceased and family “ Good Easter ; ” that he went in, and they remained outside, sitting upon a rock or pile of stones thirty or forty paces from the door ; that after waiting about twenty minutes the defendant came out of the house, followed by six or seven persons, men and women, who were armed with sticks and chairs ; that after they were three or four paces outside the door the deceased rushed out with a gun, saying that he could “ lick ” four like the defendant; that he pointed the gun at the defendant, and fired, and after that the revolver was discharged by defendant. Aside from the improbable character of this story in all its details, the testimony was very much weakened on the cross-examination. It does not appear why they sat outside the house, and saw their friend assaulted and Salvano killed, without making their presence known to any one. Though they were, if their statement can be credited, but a very short distance from the house during the alleged affray that resulted in the death of Salvano, and during the flight and capture of the defendant, they were not seen by any of the persons who lived in the house, nor did either of them, prior to the trial, publicly disclose the fact that they were eye-witnesses to these momentous transactions, although an investigation was had before the coroner immediately after the killing.

Moreover, the testimony of the defendant and these two witnesses was contradicted by five witnesses who were members of the family of the deceased, and present when the defendant entered the house. These witnesses were the widow, sister, daughter, and son-in-law of deceased, and Delucca. They deny that the deceased threw dishes on the floor, or broke any of them, or that the wife scolded or slapped defendant’s face, or that any one made any assault upon him, with sticks, chairs, or otherwise, as sworn to by the defendant. These witnesses also show that the only gun that the deceased had was an old one, with but a single barrel, which he had purchased some time before in his business, which was that of a junk-dealer, for about forty cents, and which after the shooting was found by the police and a member of the family in the loft of the barn, where it had been since it was purchased, covered with rust, unfit for use, and clearly indicating from its appearance that it had not been recently used.

The claim that the killing was done in self-defence depended upon the statement of the defendant, and the two witnesses referred to, that the deceased had a double-barrel gun in his hands ; that he had threatened to use it, and had actually used it, by firing a shot, and, according to one of the witnesses, two shots, at the defendant. This gun was not found around the premises by any one. The firing of the fatal shot brought to the house in a very short time, not only the police, but other persons outside the family of the deceased, and, if there is any truth in the statement that Salvano died with a gun in his hands, the circumstance that it was not found after his death, nor seen by any one, is quite inconceivable. The testimony was all submitted to the jury under a very fair and impartial charge, and it is quite evident that they were of opinion that the defence had no basis of truth to sustain it.

We think the verdict was justified by all the facts and probabilities of the case. The defendant went to the house of the deceased with a loaded revolver in his pocket, and the quarrelsome attitude that he assumed upon entering, according to the testimony on the part of the people, the threats to kill, the movement by which the revolver was taken from the pocket and concealed in the coat-sleeve, and the manner in which he used the pistol upon the deceased, all indicated a deliberate and premeditated design to effect his death, which was carried into effect.

It is not material whether the defendant’s acts, resulting as they did in the death of Salvano, under the circumstances, proceeded from some motive not disclosed, or from general depravity of mind and a reckless disregard of human life. In either case, in the absence of lawful excuse or justification, these acts established the crime of murder in the first degree. The judgment should be affirmed.

All concur.

Note.—After this decision of the court of appeals, defendant applied to the United States circuit court for the southern district of New York for a writ of habeas corpus; and from the order of the circuit judge, denying the same, appealed to the supreme court of the United States.

The matter was decided (21 December, 1891) at the same time as McElvaine v. Brush (reported infra, p. 291), and the opinion of the. supreme court of the United States is as follows :

NICOLA TREZZA, Appellant, v. A. A. BRUSH, Agent and Warden at Sing Sing Prison in the State of New York.

Appeal from the circuit court of the United States for the southern district of New York.

Fuller, C.J.—Trezza was convicted of murder in the first degree in the court of sessions of Kings county, New York, June 6, 1890, and sentenced to death. The warrant for the execution of the judgment and sentence was duly issued to the agent and warden of the state prison at Sing Sing, and under it Trezza was committed to his custody.

An appeal was taken to the court of appeals and the judgment affirmed (125 N. Y. 740 ; 8 N. Y. Crim. 283.), whereupon, March 6,. 1891, the court of sessions ordered the judgment of conviction and sentence of death to be executed and enforced in the manner provided by law, and issued a second warrant to the warden. Trezza then presented his petition for a writ of habeas corpus to the judge of the circuit court of the United States for the southern district of New York, and brings the order of that court denying its prayer to this court on appeal.

Petitioner claimed that by his imprisonment under the first warrant he had been once punished for the offence for which he had been convicted, and that solitary confinement amounted to cruel and unusual punishment, and hence that he was restrained in violation of the fifth and eighth amendments to the Constitution of the United States; and he objected also that the warrant was not sufficiently definite and specific.

, The record has not been printed nor have briefs been filed on either side, and appellant was not represented by counsel when the cause came on for hearing. We have, however, carefully examined the transcript, and find no ground upon which to arrive at a different conclusion from that just announced in the case of McElvaine.

The judgment is affirmed and the mandate ordered to issue at -once.  