People v. Piscopo

Per Curiam.

Defendant was indicted and tried for the crime of murder in the first degree for shooting and killing one Margaret Sullivan in the borough of Richmond on October 3, 1926. The trial was had the same month, and on October 22, 1926, the jury after ten hours of deliberation convicted the defendant of murder in the second degree and he is now serving his sentence for that crime.

Upon the trial the People’s witness Healey was permitted to testify, against the objection and exception of defendant’s counsel, that, upon an occasion about two months before the trial, Margaret Sullivan said, in defendant’s presence, that the reason she left Healey’s house at a prior time was because the defendant threatened to kill her if she did not; that the defendant, on hearing this statement, immediately denied it.

This testimony was hearsay and clearly incompetent, and, in our opinion, extremely prejudicial to the defendant. (People v. Kennedy, 164 N. Y. 449.)

The defense offered upon the trial was that the homicide was accidental. The defendant testified that he had been intimate with the deceased for about four years; that he became involved in debt because of her; that he was depressed and discouraged and felt that he could no longer face his wife and children, and so concluded to kill himself and for that purpose pulled out his revolver and put it to his temple, and at that moment the worn an grabbed the gun down and it accidentally went off and killed the deceased. Defendant’s subsequent statements, actions and conduct, it is urged, indicate the truth of the defense.

The prosecution, to show criminal intent on the part of the defendant, relied largely on evidence of former threats and quarrels between the defendant and the Sullivan woman, and the testimony of Healey, above referred to, was, therefore, important as it bore directly on the question of motive; being a statement purported to have been made by the very woman shot and killed by the defendant, it may have convinced the jury that defendant’s version of the homicide was untrue. Under such circumstances, we are of the opinion that the error of the trial court in admitting the evidence referred to calls for a reversal of the judgment.

The judgment of conviction of the County Court of Richmond county should be reversed and a new trial ordered.

Young, Rich, Lazansky and Hagarty, JJ., concur; Kapper, J., dissents and reads for affirmance.