
    The People of the State of New York, Respondent, v. Raffaele Bova, Appellant.
    Second Department,
    November 5, 1915.
    Crime — murder in second degree — circumstantial evidence.
    Upon the prosecution of a defendant indicted with others for shooting and killing a person while on the stairs leading to the second story of a building, no eye-witness of the killing was called and the evidence against the defendant was largely circumstantial.
    Evidence examined, and held, that a judgment convicting the defendant of murder in the second degree should be affirmed.
    Jenks, P. J., and Carr, J., dissented.
    Appeal by the defendant, Raffaele Bova, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of October, 1913, convicting him of the crime of murder in the second degree, and also from an order entered in said clerk’s office on the Yth day of October, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      John J. Hughes, for the appellant.
    
      Frederick E. Weeks, District Attorney, for the respondent.
   Rich, J.:

In the early part of February, 1912, Philipo Carido entered the hallway of the house No. Yl Bronx street in White Plains, and, while on the stairs leading to the second story, was shot and instantly killed. No eye-witness of the killing was called upon the trial, and the evidence against the defendant is largely circumstantial. A stiletto was found upon the body of Oarido, and on the stairs the police found a revolver fully loaded with ball cartridges. The appellant and several others were indicted, charged with the murder, and upon the trial the appellant was convicted of murder in the second degree. A motion to set the verdict aside and for a new trial was denied, and from the verdict of conviction this appeal is taken.

It seems that a woman named Oonchetta was or had been living with one or more persons on the second floor of the building in which Oarido was killed. Entrance to the floor occupied by her was had from an outside porch into a hallway and thence up a three-foot stairway extending along the south wall of the building and terminating in a room used by her as a kitchen. Around the well of the stairway there was a railing six feet seven inches long and thirty-two inches high from the floor, which was made of four narrow boards nailed to posts. There was a window in the kitchen directly over the front door, and nearly opposite this inclosed stair well which faced to the west. The left side of a person would be exposed to the kitchen in going up the stairs, and in going down the right side would be exposed. Oarido was killed with a shotgun; the charge passed through his neck from right to left, taking a downward course and coming out on the left side one and one-half inches lower and a little further back than the point of entrance on the right side. The wound inflicted was one and one-fourth inches in diameter; the vertebral column was fractured and the spinal cord entirely severed. The autopsy disclosed several small punctured wounds near the roots of the hair and a small hole in the lobe of the right ear, evidently made by scattering buckshot with which the gun was loaded. From the main wound a shotgun wad and a buckshot were taken. There was a discolored mark around the right leg, and the operating surgeon was of the opinion that it was made after death by a strap drawn tightly around it, the inference being that the strap was used to assist in dragging or carrying the body from the house to the sewer, where it was found. On the under side of the second lower board forming the stairway guard or rail, a little more than a foot above the floor, was a circular hole cut by one or more of the buckshot undoubtedly fired from the gun that killed Oarido; there was a corresponding hole in the wall on the other side of the stairway, in the neighborhood of eight to ten inches lower and nearly two feet nearer the head of the stairs. In this hole three lead slugs, a little larger than buckshot, were found imbedded. A line drawn from the hole in the stair railing to the hole in the wall was on an angle and crossed the fourth, fifth and sixth steps of the stairway from the bottom. The distance from the fourth step to the hole in the second board of the stairway inclosure is six feet five inches, and from the sixth step to the hole in the wall three feet eight inches. The floor level of the second story is five feet above the fifth step. These facts indicate that Oarido was on the fifth stair from the bottom when he was shot, and going down the stairs, or, if going up, had turned his head completely around and was looking back down the stairway, so that the right side of his head was toward the person who shot him; and that -the latter stood at the west or front end of the stairway guard with his gun pointing downwards to the rear of the building and diagonally across the stairway.

It is the theory of the prosecution that Oarido had been lured into the building upon the pretext that the woman Oonchetta wanted him, and that the time for the visit was fixed at an horn* when he might suppose that the persons with whom she was living would be absent; that the appellant and his associates assembled at the house for the purpose of killing him, and were in the kitchen at the foot of the stairway inclosure at the time he entered the hall; that Oarido started to go up the stairs, became alarmed at something and turned to leave the building, when the appellant fired the shot; that Oarido was unarmed when he entered the building, and that the revolver found upon the stairs and the stiletto found in the inside pocket of the vest upon his body were placed there after the killing.

The People presented testimony showing that a few days before the death of Oarido one Demetrio Sara accompanied the Oonchetta woman from White Plains to the city of New York. Upon reaching New York they went to a house in Forty-eighth street, where Carido was then living, where she remained, Sara returning to White Plains. The night following his return the appellant called upon him at his. house and the two went to the house at 74 Bronx street, where Carido was subsequently killed. There they met Eepeppi, Beppo Eomeo, Tony Lotelli, and the appellant demanded that Sara disclose the whereabouts of Conchetta, and said to him that he would never leave the house unless he gave the information demanded. Sara finally informed them that the woman was in New York with Carido, and appellant thereupon took them to New York. Sara was taken to the basement of a building in which a number of his countrymen were assembled, none of whom, with the exception of the appellant and Eepeppi, were known to him. He there met Buetti, Bomban and Filistro, who are jointly indicted with the appellant. Sara was required to disclose the whereabouts of Conchetta to these men. He was detained that night, but was permitted to return to his home the next morning. A few days later Conchetta returned to White Plains and resumed her relations with Eepeppi at No. 74 Bronx street. This was about a week before the death of Carido. On the day of her return the appellant, Conchetta and some or all of the other persons indicted with him were seen together in consultation in a vacant lot, after which Conchetta went to the house No. 74 Bronx street. Three or four days thereafter Carido came to White Plains, where he met Sedri, and after spending some time in the vicinity of the place where Conchetta was staying, Sedri accompanied him to Bronx street. On arriving in front of No. 70 Carido told Sedri to stop awhile, and he went into No. 74. It was then in the neighborhood of ten o’clock in the evening. Immediately following Carido’s entrance into the hallway of the building Sedri heard a shot and shortly after the appellant came to the window over the hall entrance, leaned out and looked up and down the street. The appellant, Buetta, Eomeo, Nortra, Eepeppi and the woman Conchetta then came out of the building, through the front door, and went down the street. They were seen and recognized by Sedri, who testifies that they were the same persons he saw in the vacant lot with Conchetta on the day she returned to White Plains. Neither Eepeppi nor Conchetta have been seen at White Plains since that night. It seems that in the early part of November following one Mara was induced by one Stratti to accompany him to a piece of woods near the village, where he was met by the appellant and several other men, who took his money from him, and appellant said, “ if you say anything about this we will kill you and put you in the same place where we put Pelipo \_sic\ Carido.”

After the appellant was arrested and confined in the jail an Italian detective was placed in the cell next to him, and permitted to be in his company each day while taking exercise. This detective testified that the appellant told him that Conchetta had run away with Carido; that she returned, and Carido came to get her again, and he (appellant) and Oonchetta’s husband killed him; that he shot Carido, and, with the others, threw his body in the water pipe. This testimony is denied by the appellant and his associates.

All of the witnesses who testified to the material issues involved were persons of a low grade of intelligence; the nature of their testimony and the manner in which it was given was such as to throw doubt upon its truthfulness, and this criticism is applicable to each of them. The appellant contends that there is no proof that Carido met his death through any criminal agency, and bases the contention upon the assumption that Carido entered the house of Eepeppi armed, intending to get possession of Conchetta, if he had to kill some one in doing so, and was killed' by Eepeppi in repelling the invasion of his home. The evidence does not sustain this contention. While it is not as clear and convincing as we would like to have it to sustain a conviction depriving a person of his liberty for the period of his natural life, nevertheless we are convinced that the deceased was induced to visit this place so that the appellant might avail himself of the opportunity to kill him. The learned justice who presided at the trial, with years of experience and with his earnest desire to extend to the appellant every consideration, which is disclosed by bis charge to the jury, declared on th'e motion to set aside the verdict that it was warranted by the evidence and should be sustained by the court.

The verdict of the jury is sustained by the evidence, and the judgment of conviction and the order must be affirmed.

Thomas and Putnam, JJ., concurred; Jenks, P. J., and Carr, J., dissented, upon the ground that the guilt of the defendant was not proven beyond a reasonable doubt.

Judgment of conviction and order affirmed.  