People v. Trapanio , 36 N.Y.S.2d 5 ( 1942 )

Appeal from a judgment of conviction for murder in the second degree in the Ulster County Court, and from an order denying a motion to set aside tne verdict, and for a new trial. Joseph Bailo came to his death from gunshot wounds on November 10, 1922, in the town of Plattekill, Ulster county, N. Y. The shots which billed him were fired by defendant. Following the homicide, the defendant fled, and was apprehended in Southern California in September, 1941. He was sworn as a witness in his own behalf; his testimony is that Bailo became angry at him while they were fixing a plow. He says that Bailo threr tened him for stating to some relative that he was intimate with a certain woman; that he was frightened and ran, Bailo following, firing two revolver shots, one a complete miss, the other striking defendant’s hat. His account of what followed is quoted: “ Q. Then what happened? A, I turned around and I shoot him. Q. You turned around and you shot him? A. Yes. Q. How many shots did you fire? A. I shot two at the same time. Q. You had a double barrel shot gun? A. Yes. Q. You fired both shots at the same time? A. Yes. Q. Did you see him fall? A. Yes.” There is no other evidence that Bailo was armed. The gunshot wounds were in his back, and a witness sustains the inference that he was shot in the back. The defendant, knowing that he was to meet Bailo, took the shotgun, explaining that era route to the meeting he might have a chance to kill a rabbit or some other small game. Self-defense was not established. Judgment of conviction unanimously affirmed. Present — Hill, P. J., Bliss, Heffernan, Schenek and Foster, JJ.