COURT OF GENERAL SESSIONS OF THE PEACE, CITY AND COUNTY OF NEW YORK,
PART III.
THE PEOPLE, vs.
BIAGGIO CALANDRA. Before:
HON. WARREN W. FOSTER, J., and a Jury.
Tried, New York, October 15, etc., 1906. Indicted for murder in the First Degree. Indictement filed August 7th, 1906. APPEARANCES:
ASSISTANT DISTRICT ATTORNEYS JAMES R. ELY and
WALTER B. HOWE, for the People.
CHARLES E. LE BARBIER and WALLACE N. VREELAND, ESQS., for the Defense.
Frank S. Beard, Official Stenographer.
INDEX
Direct Cross Re-D. Re-C. Angelina Calandra 299
Giovanni Merenna 301
Opening address for the Defense 327
Bayard C. Fuller 337 339
Edwin s. Johnson 340 341
Biaggio Calandra 342 372
INDEX
Direct Cross Re-D. Re-C.
Joseph H. Moore 202 203 204 204
George L. Buckman 205 207 209
John C. Berry 211 212
Angelina Calandra 217 265 285
INDEX
Direct Cross Re-D. Re-C. Catherine Giglio 75 82
Vita Giglio 91
Carrie Filoramo 94
Albert Beuer 100 105 113
Michael Tarpey 115 135
Miuchael Tarpey 150 162 168
William E. Erb 169 171
John G. Stein 172 178
Celia Manjanara 180
Catherine Fitzell 181 187 188 188
Pietro Piastro 196 199
PEOPLE vs. CALANDRA. INDEX
Direct Cross Re-D. Re-C.
Opening address for the People 4
Timothy D. Lehane 18 25 31
Charles H. Cocke 32 42
Edwin St. John Ward 44 51 54-58 56
Walter H. volckening 58 63 73
START CASE
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MR.ELY: Now, if your Honor please, before I
begin my opening, I ask that all the witnesses be ex- cluded from the court room, except those witnesses who have been examined, during the entire trial.
As to those, witnesses who have been examined, I do not care whether they stay in or not.
THE COURT: Yes; this direction will continue, and be in force to the close of the case. After
the witnesses have been examined, they may return to the room.
MR. LE BARBIER: May it please your Honor, character witnesses?
THE COURT; Oh, no; witnesses to the facts.
Of course, your character witnesses will be limited in number?
MR.LE BARBIER: Oh, yes; we will observe the usual rule; within four or five. And there is an- other point, your Honor. Mr. Verrland, as to a point after the occurrence, will be a withness. THE COURT: Oh, I apprehend the rule will not
apply to him. I do noy know what he is going to tes- tify to. He can intimate to the District Attorney.
3
MR. ELY: Oh, no, no. I don't make any
suggestion that he be excluded. He is of counsel in the case.
THE COURT: And, if any objection is made to his presence, I will hear the objection, and decide it. MR. ELY: No; I make no such objection as to his being here.
(The Court then admonished the jury in accordance with Section 415 of the Code of Criminal Procedure, and took a recess until two o'clock).
4
AFTER RECESS.
OPENING ADDRESS FOR THE PEOPLE
of
ASSISTANT DISTRICT ATTORNEY JAMES R. ELY. May it please your Honor:
Mr. Foreman and Gentlemen of the Jury,
As you are well aware, having sat here for some
time, and having heard the questions propounded to you and the other talesmen, this is a case where the
charge is murder in its First Degree, and it is a most serious case.
The Grand Jury of the County of New York have indicted the defendant, Biaggio Calandra, for the crime of murder in the first degree, in that, as is alleged, on the 20th of July, 1906, in theCity and County of New York, at 309 East 90th street, this de-
fendant, with premeditation and deliberation, and without justificationm shot three shots, at one Joseph
5
Ciofolo, his brother-in-law, and, of those three
shots, two took effect, one penetrating the abdomen, entering just above the navel, and passing through
the abdomen, and finally causing death through perito- nitis, and the other entering the left thigh; and the
said Ciofolo died, on the 27th day of July, 1906,
in the Presbyterian Hospital, as the direct result of the shooting that occurred on the 20th day of July,
1906, at 309 East 90th street.
Now, Gentlemen of the Jury, before the People
of the State of New York can ask for a conviction of murder in the first degree, they must prove three facts as facts, to your satisfaction and beyond a reasonable doubt.
The first one is: That Joseph Ciofolo, the de-
ceased in this case is dead. That must be proved as a fact.
The second is: That JOseph Ciofolo, the deceased, came to his death at the hands of this defendant here.
The third is: That Joseph Ciofolo came to his
death at the hands of this defendant, when defend-
ant was acting with premeditation and deliberation, and without justification; or, in other words, maliciously,
6
wilfully and feloniously, those words being synonymous, in the law, with the words that I have just used,
with deliberation and premeditation, and without justification.
But, gentlemen, when the People have proved
these facts to your satistaction and beyond a reasonable doubt, them you are bound, under your oaths, to bring
in a verdict in accordance with your oaths, namely, a verdict of murder in the first degree.
Now, impases of this description, the People are not bound to prove intent.
Motive and intent in cases where the crime
charged is murder in the first degree, may becollected from the act itself.
A Man is presumed by law to be responsible for the natural results of his own act;
and, therefore, if the natural results of the act of
a person are such as would deprive another of his life, and this act is without justification, then
the acts of the person who did deprive this other
of his life would be one of the various degrees of hom- icide; and, if the act was premeditated, or deliberated, and was unjustified, then that act would be an act of murder in the first degree, it would fall within the
7
definition of murder in the first degree. Now, Gentlemen of the Jury, all that is
necessary in order to form premeditation kand deliber- ation is that the act should be considered before it is aotually carried out, and no appreciable time is necessar within which a person must conceive the design, before he carries it out.
It is sufficient if the design is conceived,
before it is actually carried out. In other words,
if there is any time for thought before the formation
and the execution of the design, the human mind acts with such celerity that it is sometimes impossible to measure
it; and all that is necessary, as I have said, is that the design should be formed before it is carried out, to establish murder in the first degree, if the kill-
ing is unjustifiable.
As far as any other motive isconcerned, I shall not, at this time, mention any. It may be that
a motive will be developed in the course of the trial. The facts in this case are very simple. The de- fendant was a brother-in-law of the deceased, having married the sister of the deceased; and, on the 20th of July, 1906, as I have said, this defendant shot
8
the deceased, from the result of which shooting the deceased died on the 27th day of July, ef this
year, at the Presbyterian Hospital. Now, for some time prior to the 20th of
July, 1906, this defendant had been engaged, at 282
Washington street, in the wholesale fruit business.
The defendant does not belong to what is ususlly known as the criminal classes, nor did the deceased. They occupied a respectable position in the community,
and as far as the People know, neither had ever been in any trouble with the law, or had ever been in any difficulties of any kind.
The wife of the defendant is, also, a respectabel woman, and he had been married to her some nineand a half years, about, prior to the 20th of July,
1906.
There had been a little feeling, however, between
the defendant and the deceased, for some little time, and this feeling apparently grew out of a disagreement between the defendant and his wife, the deceased's sister. There was a bookkeeper in the employ of the de- fendant, by the name of Celia Memengara, and, on
or about the 4th of July, 1905, the defendant and some of the employes of his concern, his fruit concern, went off on a picnic, and, during the picnic, the defendant was so atterntive to his book- keeper, as to annoy or arouse the feelings of his wife.
There were words between them, and for some time matters did not go on very smoothly between the de- fendat's wife and himself, the defendnt, on occas- ions, absenting himself from his house.
But, eventually, it culminated, somewhere to-
wards the latter end of June, 1906, by the defendant's wife going to see Celia Menengara's family, and mak- ing a complaint, the result of which was that celia Menengara was no longer in the employ of hte defend- ant; and, on the complaint of his wife beingbrought
to his knowledge, he simply left, and withdrew from his house, and went to live elsewhere. For about
three or four weeks before the 20th day of July, 1906, the derfendatn had been living separate from his wife. During this period, the deceased, Ciofolo, and
some other friends, were anxious to bring about a re- conciliation; and, eventually, on the 15th of July,
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I think it was on Saturday evening, a meeting of reconciliation was arranged, the deceased bringing the defendant to the houe where the defendant's wife and some relatives were, and a reconciliation was effected, the defendant having stipulated that his
wife should shake hands with Celia Menengara, as a condition of reconcilation, and this occurred; and, from the 15th on, the reconciliation was apoarently complete, and the defendant and his wife lived together.
On the night of the 20th of July, 1906, shortly
before eight o'clock, the deceased went around to 309
East 90th street, the apartmentsof this defendant. They were on the fourth floor; they had an apart- ment on the fourth floor. 309 is one of those apartment houses, with a hall in the middle, and apartments on either side. They are called two
flat apartments, and the defendant had an apartment, as I say, on the fourth floor, on the easterly side. Shoutly before eight o'clock on the night in ques-
tion, namely, the 20th day of July, 1905, the deceased went to the apartments of the defendant, and he found the defendant and his wife and three friends there,
the friends being the Giglios. There was Mrs.
Giglio and her daughter and her son, who had been having supper wiht the defendant.
When the deceased got in, there was some ques- tion about being allowed to remain so long at the business place, without notice that the defendant wasnot coming back. There was some discussion, as I say, between the deceased and the defendant on that subject; but it amounted to but little, and, about
eight o'clock, the Giglios went away; and, shoutly after eight o'clock, a few minutes after the depart- ure of he Giglios, the deceased left the Kitchen
in which they had all been seated, and went out in the hall.
As the deceased went out into the hall, the defend- ant's wife said to him, "Why so much trouble about business?" Or words to that effect, and the defendant aid, "Oh, well, It's because your brother is always drunk," or words to that effect.
And, when I make that statement, I do not attempt
to quote the wordsexactly, but, if I do not quote them acourately, those were the words that were substatially used.
12
And the defendant's wife replied, "Why, my brother wasn't drunk."
Just about that time there was a rap at the door,
and the door was opened, and the deceased returned, and he said, "Do you mean to say I am drunk, you villian, you coward? He shook his finger at the defendant. He had nothing in his hands.
But, just prior to the time that the deceased had left, at or about the time that Joseph Ciofolo had
left, the defendant had withdrawn from the kitchen into his bed room, and had partially undressed himself.
The defendant was in the habit of carrying a re- volver, and the revolver which was used on this oc- casion, we will show, was the defendant's revolver. The defendant, as I say, had withdrawn from the kitchen, and gone into his bed room, and, at the time that Joseph Ciofolo returned to the kitchen, the de- fendant was in the bed room.
The deceased, Josph Ciofolo, did not, at any time, go into the bed room, but he approached toward the door, and stood at the door of the bed room; and, when he said, "Do you mean to say that I am drunk?" Or words to that effect,"you coward, you villian", he
13
shook hisfinger at him.
The defendant then immediately came out of the bed room, and there was a struggle between them; and, in the struggle, a window was broken, and then three shots rang out.
Immediately after the second or third shot had
rung out, Mrs. Cofolo, the defendatn's wife and the deceased's sister, looked at the deceased, and she saw that there was smoke coming from his garments, right in front of his stomach, and she said, "What's
the matter?"to her brother, "you are burning", or words to that effect. "Is it a cigar?" And he
said, "No, I am shot."
The deceased had taken away from the defendant a pistol which belonged to the defendant, and,
with the pistol, he walked away out of the premises, and stood in the hallway.
He was found there, standing in the hallway, with his pistol in his hand, which had three dis- charged shells and two cartiridges in it. He was found there standing in the hallway, with his pistol in his hand, by one by the name of Bauer, a young
man who was attracted by the noise, and had rushed in
14
and found him there.
And Bauer took the pistol out of the hands of the deceasd, and threw it down on the floor, and rushed out again, and called an officer. As Bauer was running off, the deceased, who
was standing, at that time, about three feet away from the head of the stairs, fell in the hallway,
and did not rise again, I believe, until he was taken away on a stretcher by the ambulance surgeon.
He wastaken away, then, to the Presbyterian Hos- pital, where he remained for a week, and aventurally died from peritonitis, the direct result of the per-
forating wound which entered the abdomen, just above the navel.
Now, after the shooting, the defendant was
found in his room, and he waspartially dressed then. When the officer went in to see him the defend-
ant said that he had committed this deed; that he had shot two or three times; and that he had shot in self defense; and that is the only statement that he made, at that time.
He did not state how or in what way, manner or form he had been attacked. He simply stated
15
that he had done the shooting in self defense. The defendant, as you see, is a hump-back, and he has something the matter, I think it is with his left leg. It may be withered. Anyway, he drags it.
He is a small man, and he does not look especially powerful, physically.
The deceased, however, was a man who was about five feet, nine. He was a man who weighed, perhaps, anywhere from 160 to 180 pounds; and he was a man, however, fifty-five years of age.
Now, as far as any witnesses that the People have, on the morning of the 21st of July, 1906, as well as on the night of the 20th of July,
1906, there was no mark of any kind on the defendant's person, indicative of any violence of any nature.
As matter of fact, the deceased, on the night in question, had two bullet wounds in his body; one entering the abdomen, just near the navel, and the other his left thigh.
As matter of fact, after the deceased wasshot,
as he was shot, in the rooms of this defendant, by
this defendant, on the night in question, the deceased was found, having taken the defendant's revolver away,
16
and there were still two chambers of the revolver which had not been exploded or discharged.
Of course, you will consider all thes matters,
when you do consider the question as to whether or not there was self defens in this case.
Itwill appear, however, that, after the night
of the 20th of July, 1906, and after the defendant had simply informed the officer, that he had done this act in self defencse, that he wasarraigned in the Police Court; and, through his attorney, the
defendant said thenthat he had done this innself de- fense, when the deseased bit him in the wrist; and that is, as I underdtand, the basis of the claim
of self defense.
Now, gentlemen of the jury, when the People have shown that this man, without justification, without legal justification, and with premeditation and de- liberation, committed this act, namely, shot these
three shots, two of which took affect upon the body of the deceased, and one of which caused his death, as I say, without justification, and with premeditation
and deliberation, for you can collect premeditation
17
and deliberation from three shots; there is an interval between every one of three shots, and there must be a working of the finger, each time, in order to pull the trigger; when you consider
this case on the evidence,and the evidence will all be put in; and the People do show you that this defendatn did fire three shots at the deeased, on the night in question, from kthe direct results of which
the deceased died, the People will ask for a verdict of murder in the first degree.
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THE PEOPLE'S TESTIMONY.
TIMOTHY D. LEHANE, a witness calledon behalf
of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Mr. Lehane, what is your business?
A Physician and surgeon; coroner's physician.
Q And how long have you been admitted and licensed to practice as a physicina and surgeon?
A Since about 1892 or
3.
Q And how long have you been the physician to one of the corner's?
A Three years, next September.
Q And your official title is what?
A Coroner's Physic-
ian for the City of and County of New York and Borough of
Manhattan.
Q And then you were a coroner's physician on the 27th day of July, 1906?
A I was.
Q And did you perform an autopsy upon the body of anybody, at the Presbyterian Hospital, oh the 27th of July,1906?
A I did.
19
Q Was it the cadaver of a male of female person?
A A male.
Q And do you know Officer Ziegler, of the 28th
Precint?
A I do.
Q And did you see Officer Ziegler at the Presbyterian HOspital, on the afternoon of the 27th of July, 1906?
A I did.
Q And where were you at the time you saw Officer Ziegler?
A In the Morgue of the Presbyterian Hospital.
Q Was there anything on a slab in the morgue of the
Presbyterian Hospital?
A Yes.
Q There was, when you saw Ziegler?
A Yes, sir. MR. ELY: Come up here to the rail, Ziegler.
BY MR. ELY:
Q Do you see that officer standing there (Indicating)?
A yes, sir.
Q Do you know who he is?
A Yes.
Q Who?
A Officer Ziegler. of the 28th Precinct.
Q And the Officer Ziegler of whom you have just been speaking?
A Yes, sir.
Q Now waht was on the slab, if anything, in the morgue
of the Presbyterian Hospital, on the afternoon of the 27th of
JUly, 1906, when you saw Officer Ziegler, who just stood up, a
20
moment ago, at the rail?
A A male, by the name of--
Q No, no.
A cadaver?
A Yes.
Q The body of a male person?
A Yes, sir.
Q And, before you saw Ziegler there, in the morgue,
did you know who the body of this man was?
A No, sir.
Q And, after you had seen Ziegler, did you know who the body of his man was?
A Yes, I did.
Q And after you had see Ziegler, what name did you call him by?
A Joseph Ciofoli.
Q Now this Joseph Ciofolo was a man about how old?
A My notes, please,
Q Here they are?
A A Man in the neighborhood of 55
years; five foot, 7 inches in height; weight about 180, pounds;
muscular, well built; grey hair and moustache.
Q Well, go ahead, just tell it all?
A He was
autopased by me on the 27th of July, 1906, at four p.m.; and the results of the autopsy--
BY THE COURT:
Q On what day in July?
A On the 27th day of July,
1906, at four p.m. The results of the said autopsy, and the cause of death, were peritonitis, as the result of a pistol shot wound in the abdomen.
BY MR. ELY:
Q Now, you ecamined the body carefully; did you?
21
A Yes, I did.
Q And just tell the jury here how many pistol shot wounds you found on the body?
A Two.
Q And please describe where those pistol shot wounds were located?
A The pistol shot No. 1, was two inches above the umbilicus, in the median line.
Q Well, is the umbilicus hat is colloquially known
as the navel?
A Yes, sir; and took a backwardsand downwards course, and come out about three inches from the median line of the spinal colume, right over to the posterior and superior
spine of the ilium.
Pistol shot wound No. 2 was located on the upper and anterior surface of the left side, about four inches below the inguinal fold.
Q Where is that? What is that?
A Right here
(Indicating); about there. It went through the outer surface of the femur, coming out posterior to a point almost oppos- ite to the point of entrance (Illustrating).
Q That is, it went right through the thigh?
A Right through the thigh.
Q He was shot through and through, there?
A Yes, sir.
Q Now, doctor, you have been talking about pistol shot No.1 and pistol shot No.2. Of course, you mean simply
22
by that the pistol shots which you examined in their order?
A Yes, sir.
Q You don't know anything about which pistol shot was shot first?
A No, sir.
Q Not having been there?
A No, sir.
Q I simply call this to your attantion, so that there will be no uncertatinty about it?
A Yes, sir.
Q Now this No. 1 and No.2, with reference to the pistol shots, simply refers to the time of their examination by you; is that right?
A Yes, sir.
Q That is, you examined the pistol shot which penetrated the abdomen, just above the ambilicus, as you say, first?
A Yes, sir.
Q And that's the reason why you call it pistol shot
No. 1?
A Yes, sir; No.1.
Q Thank you. Now, doctor, did you find any bullet, when you performed this autopsy?
A No, sir.
Q Did you receive any bullet from anybody which re- fers to this case?
A I did.
Q Have you that bullet with you?
A I have.
Q Will you kindly produce it?
A I will.
Q Now, you produce an envelope, do you, which you hand to me?
A Yes, sir.
23
Q And which has certain writing on it?
A I have.
Q And, on feeling this envelope, I feel some substance within it. Will you please feel it yourself?
A Yes.
Q Now do you feel a abstance within that envelope?
A Yes, sir.
Q And have you ever felt the substance within the evnelope before, before you just felt it there?
A Yes. Well, it has been in my possession.
Q Now, please, please,Yes is the answer?
A Yes, sir.
Q,,Now will you be good enough to tell me from what
source you acqured possession of that envelope?
A The con- tents of the same --
Q (Question repeated).
A Form Doctor Cocke.
Q Now, doctor, are you able to tell me whether at the
time you received that envelope from Dr. Cocke, the substance which you just stated you felt in the envelope, a moment ago, was in the envelope?
A Yes, sir.
Q It was?
A Yes, sir.
Q And I will ask you now, when you received that envel- ope, with the inclosed substance, from Dr. Cocke?
A On the afternoon that I performed the autopsy.
Q Well, please say. That is the 27th day of July,
1906?
A Yes, sir.
Q And where did you receive that?
A In the office
24
of the Presbyterian Hospital.
Q And it was in the Morgue of the Presbyterina Hospital, I believe, you stated that you performed this autopsy?
A Yes, sir.
Q And the Presbyterian Hospital and the morgue are in the City and County of New Your; are they?
A Yes, sir.
Q And in whose possession has that envelope been ever
since you say you received it from Dr. Cocke, on the afternoon of the 27th of July, 1906?
A In my own.
Q And you identify it; do you?
A I do.
Q As the envelope andthe -- was the envelope--
pardon me -- the envelope which you now hand me, I perceive, is sealed?
A Yes, sir.
Q That is, glued together, stuckmtogether?
A Yes, sir.
Q I ask, at the time that you received this envelope from
Dr. Cocke, it was sealed?
A Yes, sir.
Q Was it sealed when you got it?
A Yes, sir.
Q And then, as far as you are concerned, you have never seen the contents of this envelope?
A I don't recollect.
I might have seen him place the bullets in the envelope.
Q Well, now, I have never called it a bullet, and you
mustn't. You won't be sure whether or not you saw him place the contents in the envelope, or not?
A i can't say.
25
Q, But you may have and may not have?
A Yes, sir.
Q But, any way, when the envelope kdid come into your possession, it was sealed; is that right?
A Yes, sir.
Q And it has remained in your possession, sealed as it is now, since; is that right?
A Yes, sir.
MR. ELY: I offer this nowonly for Identifica- tion.
(It is marked People's Exhibit I for
Identification.) BY MR. ELY:
Q I believe you have told me the cause of death, but you may state it again?
A Peritonitis, following a pistol shot wound of the abdomen.
Q And then the direct result of this pistol shot wound
of the abdomen was the death of the deceased; inthat right?
A Yes, sir.
CROSS EXAMINATION BY MR. LE BARBIER:
Q Tell me, doctor, what was the condition of the organs generally?
MR. ELY: Objected to. That is immaterial, incompetent and irrelevant.
THE COURT: He may answer.
A The heart was soft and flabby, otherwise normal. The
26
lungs both had adhesions at the base and apeces, and congrs- tion. Kidneys presented evidence of diffused nephritis.
The spleen was normal. Liver was fatty and stomach empty. The intestines, the small intestines were dilated, and con- tained considerable exudate of a fibrinous character. The brain was congested and wet.
Q And, if I understand you correctly, the liver was not normal?
A Oh, counsellor--
Q The deliver was not in a normal condition?
A No, sir.
Q Indicating disease of nay kind?
A Either alcoholic-- MR. ELY: I object. Wait. Wait. I object
on the ground it is wholly immaterial, irrelevant and incompetent, for the reason that, even if this man were shown to have died of these causes, it could not in any way affect the question in this case;
because unless they could show affirmatively that he was treated with crass negligence, to such an extent that the doctors themselves would be liable for the death of the deceased, and subject to prosecution
for a homicide, why it isno defense, and the law is well settled on that point.
THE COURT: The cause of death is, of course, germane to this inquiry. But it does not follow
27
that, because the doctor has testified, that is necessarily the cause. The defesnse has a right to develop in cross-examination, if possible, another cause of death; and it being cross-examination, and preliminary in its nature, I will allow it.
BY MR. LE BARBIER:
Q (Question repeated).
A Yes, sir.
Q What was that disease?
A Either syphilis or alcohol- ism.
Q Which of the two; doctor, may I ask? MR. ELY: Now, I object. The question is whether he has an opinion.
THE COURT: If he knows. BY MR. LE BARBIER:
Q If you know?
A Well, to the best of my opinion, from the condition of his brain, it was possibly due to alcoholism.
MR. ELY: I object to that, and ask to have it stricken out.
BY THE COURT:
Q Can't you answer beyond a reasonable doubt?
A Not
except from a pathological conditaion that the organs presented.
Q We don't want any possibilities. We want probabilities,
with a reasonable certainty.
A From a reasonable certainty,
28
from the conditionmhis brain and liver were in, he presented the condition of alcoholism.
BY MR. LE BARBIER:
Q, That is to say, from your pathological observation of the body, it showed alcoholism; didn't it?
A The results of alcoholism.
Q I mean that, the results of alcoholism?
A Yes, sir.
Q Do you know when it was, doctor, that this body was brought to the Presbyterian Hospital?
A No, sir.
Q When you undertook to autopsy the body, did you ob- serve beforehand the conditionof the body?
A I did.
Q Did the body show any signs of operation?
A Yes, sir.
Q One of more?
A One.
Q Do you know whether there was one or more operations on the body?
MR. ELY: Of your own knowledge, now.
A I am unable to answer.
BY MR. LE BARBIER:
Q From your observation of the body, I understand you
to now state that you are unable to answer whether there
had been one or more operations on the body, before you aut-
29
sied it?
A Yes, sir.
Q Did you at ayny time see the defendant?
A Not to my knowledge or recellection.
Q Before the autopsy?
A No, sir.
Q Do you know, doctor, how long the body had been in the Presbyterian Hospital, before you autopsied it?
A No, sir.
Q Did you at any time see the clothing of the decease d?
A No, sir.
Q In your observation -- question withdrawn. To be
bried, I understand you to say that there were these two bullet perforations in the body, one in front, near the umbillicus,
and penetrating inwards, and downwards, and backwards, having its point of exit in the back of the body?
A Yes, sir.
Q And in the other, the bullet had its point of entry
on the femur, the upper anterior surface of the lefe leg, penetrating the outer surface of the femur, and extending backwards, and coming out in the rear of the leg, as I under- stabd it?
A Yes, sir.
Q Any marks, that you noticed, at all, around the wound?
A No, sir.
MR.ELY: Well I suppose you mean, Mr.
Le Barbier, this last wound? There are two wounds.
30
MR. LE BARBIER: Well, I am proceeding by way of question and answer.
MR. ELY: Well, I object to that, and move to strike out the answer.
THE COURT: Yes. It would be more enlighten-
ing, Mr. Le Barbier, if you would specify the wound about which you asked.
BY MR. LE BARBIER:
Q Around either wound?
A No, sir.
Q Having autopsied a number of bodies, in your exper- ience as a coroner's bhysician, and physician, can you state whether or not, when you examined both of these
wounds, the body was in such a condition that you could deter- mine whether there had been any marks in and about the points of entry of each wound?
A No, sir.
Q From the condition of he body, you couldn't determine?
A No, sir.
Q Do I understand youcorrectly, when you speak of the condition of the body, do I understand you to speak of the condition of the body resulting from the operations on the body
A There was only one operation on the abdomen, an incision
in the abdomen. there was no operation on the left leg at all.
Q And did you observe the wound on the left leg, so as to
be able to determine whether there were any marks at all, at
31
the point of entry?
A There were no marks at all.
Q There were no marks at all?
A No, sir.
Q That is what I wanted to find out. Do you know
whether or not that body had been bandaged from the operation on the wound in the umbilicus?
A I believe it had a dressing
Q Did you see it?
A I believe so. BY THE COURT:
Q When you say you believe,--
A That is to the best of my knowledge, your Honor.
Q Do you mean to the best of your knowledge or the best of your recollection?
A to the best of my knowledge and recollection.
BY MR. LE BARBIER:
Q Do you know how long that dressing bad been on that wound?
A No, sir.
Q Is there any indicia that we can go by, as to determin- ing how long the dressing had been there on that wound?
A No, sir.
RE DIRECT EXAMINATION BY MR. ELY:
Q Now, Doctor Lehane, when you say that you didn't ob- serve any marks at all about the wound there on thigh--
it was the left thigh; wasn't it?
A Yes, sir.
Q Wasn't there a bluish mark around the opening?
A No,
32 sir.
Q You didn't observe any, if there was?
A No, sir.
Q Now, the question has been asked you as to whether or not this body upon which you performed an autopsy, of Joseph Ciofolo, was bandaged, and you said -- indicated that
you saw some sort of a bandage, up and down the abdomen. You don't know whether it was bandaged or not; do you?
A To
the best of my recollection, there was a dressing on the abdom- inal wound.
Q And a dressing is different from a bandage; isn't it?
A A dressing might be a number of bandages.
Q And it might be simply a piece of gauze or lint, stuck on with this plaster?
A Yes, sir.
Q And without any bandage arouhd?
A bandage is ordinar- ily supposed to be, in common parlance, somthing that en- ircles?
A Yes, sir.
Q And it might have been an ordinary piece of gauze, secured to the body by these adhesive plasters?
A Yes, sir. CHARLES H. COCKE, a witness called on behlaf
of the People, being duly sworn, testified as fullows; DIRECT EXAMINATION BY MR. ELY:
Q You are a physician, duly licensed to practice?
33
A According to the provisions of the Board of Health re- garding hospital internes.
Q yes. You are a hospital interne; are you?
A Yes, sir.
Q And for how long a periof have you been connected with the Presbyterian Hospital?
A Since January 1, 1906.
Q And, prior to that, were you studying?
A Well,
not since the June previous, when I granduated at a Medical
College.
Q You graduated in June, 1905?
A Yes, sir; from the Medical College, and--
Q What did you do in the summer of 1905?
A Well, I traveled in Europe.
Q Well, were you pursuing your medical studies?
A No, sir; not actively; only reading.
Q Did you visit hospitals while you were abroad?
A No, sir;
Q Now, on the 1st of January, 1906, you became an internein the Presbyterian Hospital, in New york County?
A yes, sir.
Q And that is in East --
A East 71th street and
Madison avenue.
Q East 70th street and Madison avenue?
A Yes, sir.
34
Now do you remember the night of the 20th of July,
1906?
A yes, sir.
Q And, on the night of the 20th of July, 1906, what
were your duties?
A I was house -- I was ambulance surgeon.
Q Yes. And at or shortly before eight c'clock in the
evening of the 20th day of July, 1906, did you go personally on the ambulance anywhere?
A I did.
Q And where did you go?
A To a house number on 90th street, as well as I recall, 300 something.
Q 309 would you say?
A Yes, I think that's it;
as well as I recollect.
Q And you went there in pursuance of a call for an am- bulance?
A Yes, sir.
Q And you went there on the ambulance?
A Yes, sir.
Q And what did you find there?
A I found a man lying in the hallway, who was suffering from--
Q Now, in the hallway? That is, in the hallway of 309
East 90th street, to the best of your recollection?
A Yes, sir; according to my best recollection.
Q Yes. Go on, please?
A I found a man lying on his
back or side, I don't recall which, with some blood oosing from his left leg, and some marks of burns upon the clothing an front of his abdomen. The man was unable to give me his
35
name, and he was in a condition of shock.
Q Now wait a minute. You can say whether he was consciouns or unconscious, but don't say bat he was unable to give his name. It means the same thing, but one is proper and the other is improper. Go On?
A Well, he--
Q Was he conscious?
A Well, he wasn't -- he wasn't
exactly -- I wouldn't descibe it as being conscious or uncon- scious. That is, he could be roused.
Q Well, in other words, you didn't say anything
to him?
A I held no conversation with him whatever.
Q No, is the answer, then. You didn't say anything to him?
A No.
Q And he didn't say anything to you?
A No.
Q Now what did you find, when you looked at him? MR. LE BARBIER: Now, pardon me. Your
Honor, I respectfully move to strike out the words "he didn't say anything to me", as incompetent. THE COURT: No; I do not see any harm in that. They may stand.
MR. LE BARBIER: Exception. BY MR. ELY:
Q Now go a head?
A I found the man bleeding to a small
36
extent form a wound on the left thigh. Alse, there were evid-
ences of a wound in his abdomen; and the man having no percept- ible pulse, was given stimulants.
MR. LE BARBIER: I object. BY MR. ELY:
Q I didn't ask you that. I am just asking you what
you found. Now where was the point of entrance in the wound in the abdomen, as well as you recollect?
A In the neigh- berhood of the navel.
Q It was about an inch below the navel?
A As well as I recall. I couldn't state definitely.
Q Well, you testified to this in the coroner's court, didn't you?
A Yes.
Q And your memory ws fresher then, about the subject, naturally, on the 6th of August, 1906, than it is to-day, in October?
A Yes, sir.
Q Now, did you find anything doctorin the -- I with-
draw that. You say that you saw a wound in the region of the navel. Now did you find anything on his back?
A Not at that time.
Q Well, at any time?
A After bringing him to the hospital.
Q Yes or no, please. At any time?
A Yes.
Q And when was it, when did you find it?
A After I
37
brought him to the emergency ward of the hospital.
Q Yes. And when you brought this person to the emer- gency ward of the hospital, what did you do with him?
A I put him upon a bed, and pulled his clothes back for ex amination of his wounds.
Q Yes?
A And, in turning him over on his side, I dis covered a wound behind. And shall I go on and tell what I found?
Q Certainlym, please?
A And there, lying between his skin and the undershirt, was a bullet.
Q Now, I show you People's Exhibit 1 for Identifica-
tion. And please take that -- don't open it or do anything other than just what I ask you -- please take that envelope, and tell me whether you ever saw that envelope before?
A To the best of my knowledge and recollection, I have.
Q And do you know whose handwriting that is on it?
A Yes.
Q Whose is it?
A Mine.
Q And then you are sure of your own handwriting. at 1 east aren't you?
A Well. yes.
Q Well, then, you say that you received that envelops positively, if you recognize your own handwriting on it?
A Yes
Q I ask you if you know Dr. Lehane?
A I do.
38
Q Did you see him here, on the witness stand?
A I did.
Q And didyou ever see Lehane before to-day?
A Yes.
Q Did you see Dr. Lehane in the Presbyterian Hospital, at or after or betwen the dates of the 20th and 27th of July. 1906?
A Inclouded?
Q (Question repeated).
A I did. And, at any ti
have an envelope, marked People's Exhibit No. I for
Identification, in your possession?
A I did.
Q Now, doctor, you have spoken of having found a bullet between the skin and the undershirt of this person, whom you took from 309 East 90th street; haven't you?
A I have.
Q And what, if anything, did you do with that bullet?
A I put it upon my dresser, and--
Q Well, eventually -- I don't care whether you put it
in your pocket, and took it out and looked at it again-- what did you do with it?
A Well I gave it, eventually, to Dr. Lehane.
Q Well, at the time when you gave it to Dr. Lhane, did you enclose it in anything?
A In an envelope.
Q And do you see the envelope in which you en- closed it, at the time you gave it to Dr. Lehane?
A Yes, sir.
39
Q Well, where is it?
A Here it is.
Q And what did you do with the envelope before you gave it to Dr. Lehane?
A Sealed it.
Q And is that the envelope in which you put the bullet which you found upon the body of the deceased, the per-
son that you brought from the house 309 East 90th street, on the night of July 20, 1906?
A Yes.
Q And the contents are the bullet which you put
into that envelope, before you sealed it and gave it to Dr. Lehane?
A Yes, sir.
Q And that is the identical bullet?
A Yes, sir. MR. ELY: Now I offer this bullet in evidance, if your Honor please.
(It is admitted with outobjection, and marked
People's Exhibit 1.) BY MR. ELY:
Q Now did you undress the deceased, the body of the deceased?
A Yes, sir.
Q Now, did you make any mark on the garments of the de- ceased that would enable you to identify them?
A No.
Q then I won't ask you about the cloting, if you say
you can't idantify it. Now there were how many wounds in
all; how many did you see on the body?
A One in front, about
40
the navel, another behind; one in front of the thigh, and another behind.
Q And did you take, -- did you parsonally perform any operation on the deceased?
A No.
Q Who did, if you know?
A I don't know which one of the attending surgeons was on duty.
Q Well, when you got the deceased at the hospital, on
the evening in question, after underssing thm. and finding the bullet, what was done next, as far as you personally know?
A After I discovered that--
Q Now, please. I don't care what you discovered. You have described all that.
A I reported the man, as soon as
I got in there, to the House Surgeon, to whom he would go.
Q Well, did you hand bim over to somebody? I don't care
What you reported.
A I brought him in to the emergency ward.
Q Yes. YOu left him there?
A After I examined
him, and found that he had this wound.
Q Well, you have told us about your examination. And
then you left him there?
A Yes; I left him.
Q Did you see him again that night?
A I don't know.
Q Did you recollect? Who attended him, after you had
put him into the emerfency ward?
A The House Surgeon, Dr. Ward.
Q Dr. Ward attended him?
A Yes, sir.
Q And Washe Dr. Ward's patient from that time on?
A Yes.
Q Until he died; is that right?
A Yes, sir.
Q And now, didn't you attend any operation that was per- formed on the prson of this man, whom you brought from 309
East 90th steet, onnthe night of the 20th of July?
A No.
Q Now, just look at this paper, and that signature (In- dicating). Do you recognize either signature there?
A Yes
Q And whose signature, if any, do you recognize there?
A My own.
Q Now, looking at that paper, to which your signature
is appended, does that in any way refresh your recollection as to whether or not you attended at any operation that was per- formed?
A I know that you didn't.
Q You know that you didn't?
A Yes.
Q Is Dr. Ward here?
A Yes, sir.
Q Now do you know what the name of this person whom you brought from 309 East 90th street around to the hospital, on the night in Question, that is, the 20th of July, 1906, is?
A Yes, sir.
Q What is?
A Joseph Ciofolo.
Q Now, you have told us practically all that you know of
42
your own knowwledge of the case?
A I have.
Q And do you know of your own knowledge what became of Joseph Ciofolo, as you call him?
A No.
CROSS EXAMINATION BY MR. LE BARBIER:
Q Dr. Cocke, hawlong was Joseph Ciofolo in the hospital?
A Don't know.
Q What time in the evening was it that he was brought to the hospital?
A About 8:45.
Q Was he conscious at that time?
A Its the same question. I described a condition of semi-consciousenss, that is, he could be roused to move, but I didn't have any conversation with him.
Q Well, you were a withness at the Coroner's inquest, weren't you, doctor?
A Yes, sir.
Q Do you remember this Question ans answer: "Q What time of day was it?
A About 8:45 at night.
Q At that
time what was he suffering from?
A Suffering from shock. Was conscious"?
MR. ELY: Read the rest of the answer, now.
I object, unless the whole answer is read. The whole answer must go in.
THE COURT: Has the whole answer to the question been read to the witness?
43
MR. ELY: No. sir: that is what I am object- ing to.
THE COURT: Well, I think it should be.
MR. LE BARBIER: May it please your Honor, the answer relates to the wound, I have no objection to reading the whole answer.
THE COURT: Well, I do not know how you can expect a withness to remember, if the answer is not brought to his attention.
MR. LE BARBIER: Very well, I have no objection to read it.
THE COURT: Very well.
MR. LE BARBIER: On the contrary. BY MR. LE BARBIER:
Q "Q At that time, what was he suffering from?
A Suf-
fering from shock; was conscious.
A penetrating wound of the abdomen; and there was a wound also behind the back, and one in the thing, penetrating wound." Did you make taht answer?
A To the best of my knowledge.
Q Well, at the time that you made it, then, was it a correct answer, doctor?
A To the best of my knowledge.
Q Was it a correct answer?
THE COURT: He says, "to the best of my knowledge
it was, I say."
MR. ELY: Objected to.
MR. LE BARBIER: I don't think he answered it as pointedly as your Honor puts it.
BY THE COURT:
Q Can you answer that question in any other way?
A No, sir.
EDWIN ST. JOHN WARD, a witness called on
behalf of the People, being duly sworn, testified as fol- lows:
DIRECT EXAMINATION BY MR. ELY:
Q Mr. Ward, what is your business or occupation?
A Physician and surgeon.
Q And are you duly admitted and licensed to practice under the laws of the State of New York, or are you li-
censed to practice because of being an interne in a hospital?
A I am under both.
Q Both?
A Yes, sir.
Q And when were you admitted and licensed to practice, under the Laws of the State of New York; how long ago?
A I received my license in August, 1904, and registered it in January, 1905.
45
Q Are you connected with any hospital, at present?
A With the presbyterian Hospital, in this city.
Q And how long have you been connected wiht the Presby- terian Hospital?
A Since January 1, 1905.
Q Now, do you remember the night of the 20th day of
July, 1906?
A I do.
Q Do you know the gentleman who has just preceded you on the stand, Dr. Cocke?
A I do.
Q And did you know Dr. Corke on the date that I have just mentioned, the 20th day of July, 1906?
A Yes, sir.
Q And was he connected with the Presbyterian Hospital, on that day?
A He was.
Q And what washis assignment, what his duties, amont ohters?
A On that evening, he wason the ambulance duty.
Q And di you see him about 8:45, of shortly there-
after, in the evening of that day?
A I did.
Q And where did you see him?
A I can't Say; it was either in the accident ward or the operating room.
Q Yes. And, at the time you saw Dr. Cocke, on the
evening of the 20th of July, 1906, did he have any patient?
A He did.
Q What was it?
A male or female?
A A male.
Q And what, if anything, did Dr. Cocke do with this
46
patient?
A Dr. Cocke brought the patient in, examined him, and reported him to me.
Q And when you say, "He reported him to me, "does that practically mean that he turned him over to your care?
A He did.
Q And you took the patient, and put him in the emergency ward, did you?
A He was there.
Q Oh, he was there?
A He was there; yes.
Q And what, if anything, did you do with respect to this patient?
A On looking at the case, and hearing the report, I ordered him prepared for operation at once.
A And do you know what the name of this patient, who
was turned over to you by Dr. Cocke, one the evening of this
20th day of July, 1906, was? a I was told it was Joseph
Ciofolo.
Q Joseph Ciofolo?
A I am not sure of the spelling. It was given to me as Ciofolo.
Q And, after the patient was turned over to you, and you
had heard the history of the case, and had ordered preparations made for the operations, do you know who performed the oper- ation? A, It was done by Dr. George Woolsey, attending physic- ian, of the Second Surgical Division, together with the staff
of the division.
Q And did that staff include you?
A Yes, sir.
47
Q And were you present at the operation?
A I was.
Q Just think what was done, and what you saw?
A At the operation?
Q State first what you observed about the body or on
the person of this Joseph Ciofolo. He was not dead then; was he?
A No.
Q State what you saw from an examination of the person of Joseph Ciofolo; and state then what was done, if anything, connected with an operation?
A My examination were cursory when I was told that a bullet had penetrated the abdomen. MR. LE BARBIER: well not what you were told.
BY MR. ELY:
Q Well, I don't care whether it was cursory, or the
most minute or microscopic. I want to know what you did?
A I examined merely the anterior surface of the ab- domen, what did you observe?
A I observed, first of all,
an area of burn of the skin.
Q You observed an area of burn of the skin?
A Yes.
Q Please indicate or describe where you found on the ab- domen this area of burn on the skin was?
A It was in
what is called the epigastrium, or pit of the stomach, between the navel and the tibs.
48
Q Now, please indicate on your own body?
A Here (In- dicateing).
Q Touching the second button of your coat?
A Yes, sir.
Q And that is just about the pit of the stomach?
A Yes just about the pit of the stomach.
Q And about how much of an area was there, where you noticed a burn? A, It was nearly half the size of my palm, of my hand.
Q Well was it an inch and a half by an inch and a half, would you say?
A About that.
Q And what was this area of burn around?
A hole?
A There was a hole there, a penetrating wound.
Q I beg pardon?
A There was a hole there, a penet- rating wound.
Q And was this hole in about the middle of this area of burn?
A It was a little more to the right.
Q And did you examine that penetrating wound then, or
was it examined in your presence, so that you knew anything about it?
A It was not, any more than by inspection.
Q Yes. And you inspected it; did you?
A I did.
Q And was the body dressed or undressed at that time?
A It was undressed, when I saw it.
Q that is, the clothing was removed? was it entirely
49
removed, if you recollect?
A It was.
Q Or just from the hips up?
A That I couldn't say.
Q Well, but you know that it was, from the hips up?
A It may not have been from the shoulders, but it was from the entire abdomen.
Q It may not have been from the shoulders, but it was from the entire abdomen?
A Yes, sir.
Q Thank you. Now what happened after you had made this inspection of this hole, this penetrating wound, situated
within the surface of this area of burn; what happened after that?
A The body was prepared for operation, and I saw it next in the operating room, when it was finally scrubbed up for the opera- tion. at the time of the operation, when the incision was made.
Q An incision was made, you mean?
A Yes; an incision
was made, to the right of the penetrating wound, because the penetrating wound--
Q Now, never mind about the cause.
A The penetrat- ing
wound was probed, and seemed to lead downwards and to the right.
On opening the abdomen, there were some escape of con- tents abnormal to the peritoneal cavity. The intestines and their viscera were examined. Various penetrations were
found, both of the omentum, the mesentery and the intestines. The bullet seemed to penetrate into the posterior wall of the
50
peritoneal cavity, nearest the spinal column, to the right, just above the crease of the ilium.
There was found a little nick in the large intestine, close together, involving a piece of gut perbaps four to six inches long.
Q Now, were there any bullet holes on the back?
A I
didn't see it, at the time.
Q You were looking for it?
A I didn't look for it.
I was told that there was one, and let it go at that. MR. LE BARBIER: I respectfully move that this
be strieken out, from this witness, uncorroborated. THE COURT: What was it?
MR. ELY: "I was told that there was one. I
didn't see it myself."
THE COURT: Yes, crrtainly. Strike it out. BY MR. ELY:
Q This operation was performed on the 20th day of July,
1906, at the Presbyterian Hospital?
A It was.
Q And, after that, do you know whether any further oper- ation was performed?
A There was.
Q And when was that, doctor?
A On the morning of July
27th.
51
Q And what became of Joseph Ciofolo, if you know?
A He died, after the second operation.
Q On what date?
A On July 237th.
Q 1906?
A Yes, sir.
Q Where?
A In the Presbyterian Hospital.
Q In New York County?
A New York County. CROSS EXAMINATION BY MR. LE BARBIER:
Q Was the result of the second operation his death? MR. ELY: Objected to.
THE COURT: Allowed, if he knows, from the doctor's personal knowledge.
A I lelieve it was. at least in part. BY MR. LE BARBIER:
Q How long had this man been at the hospital?
A He had been there seven days, counting the fill 24 hours.
Q Do you recal the time that he arrived there, the first time?
A I do.
Q How long after his arrived was the first operation per- formed?
A Between one and two hours; Possibly shorter.
Q Possibly shorter?
A Yes, sir.
Q No other operation was performed then, if I under- stand you correctly, untill seven days afterwards?
A Not on that man.
52
Q Did yoy see the defendant at the hospital there at any time?
A Not to my knowledge.
Q Were you the doctor who sent the certificates to the
Police Magistrate?
A What certificates? MR. ELY: Oh, I object to that. That is as- suming something that isn't in evience, if your Honor please.
THE COURT: Don't answer. I exclude it. MR. LE BARBIER:
Q In this case, do you know whether or not any certifiates were sent, signed by a physician of the Presbyterian Hospital, to the Police Magistrate, before whom this case originally came?
MR. ELY: Objected to as immaterial, irrelevant and imcompetent.
THE COURT: It preliminary. He may answer.
A I filled out some certificates, which-- BY MR. LE BARBIER:
Q No. Yes or no. Do you know. BY THE COURT:
Q Do you know whether any certificates were sent to the
53
Police Magistrate?
A They were sent somewhere, but I don't know where.
BY MR. LW BARBIER:
Q Who filled out those certificates?
A I did.
Q Isn't it a fact that you stated-
MR.ELY: Oh, no. I object to any state- ment.
THE COURT: Don't answer this question. MR. ELY: I object to the counsel making any statemnet about the contents of any paper, if your Honor please, because he knows it is improper, and
it hasn't been shown that the paper could not be pro- duced.
THE COURT: I shall sustain the objection.
The contents of written instruments cannot be brought to the attention of the jury in the form of a ques-
tion, at this time.
MR. IE BARBIER: I haven't asked, your Honor, for the contents of a paper.
THE COURT: Well, proceed, please. BY MR.LE BARBIER:
Q Didn't you state, as a fact, that the patient, was recovering?
MR.ELY: I object to that.
54
THE COURT: When and where? BY MR. LE BARBIER:
Q And after the first operation, and within the next two or three days thereafter?sfactory
Mr.FLY: I object to ant.that,if your Honor please,
as incomptent, immaterial and irrelevant. We know frequently that doctors have said, "an eminently satisfactory and successfu 1 operation", and the patient is dead.
THE COURT: Allowed.
A I said,, after the first operation, to several people that the patient was improving.
BY MR. LE BARBIER:
Q Will you kindly state to the Court and jury, doctor, what was the cause of the second operation?
A On the night before his death, the patient coughed, and burst open
his wound. The resuturing of the wound, to keep the intestinal contents of the abdomen, was the cause of the second opetation.
Q And then, if I understand you correctly, as a result of
the second, the death of the patient was in part due?
A I be- lieve it was, at least, in part.
RE DIRECT EXAMINATION BY MR. ELY:
Q Now, doctor, the patient died of peritonites; didn't he?
55
A I believe that was one factor.
Q And this wound was the result of a gun shot or pistol shot in the abdomen here (Indicating)?
A Yes, I believe it was; so I was told, I didn't see the pistol.
Q Well never mind. You saw the wound. And you saw burning around it, and you diagnosed that as a, pistol shot wound?
A It looked like a pistol shot.
Q You diagnosed as a pistol shot wound; didn't you?
A I did.
Q Now, if you don't understand my question, and if it is so unscientific that you can't answer it, just say so. But,
if you can answer it, just please do. And, on account of the pistol shot wound, a certain operation was performed?
A It was't because of the pistol shot wound that a second opera- tion was performed.
Q No, I didn't say a second operation but a certain operation was performed?
A Yes.
Q And that was rendered necessary by the pistol shot wound?
A Yes, it was.
Q And you would not have performed that operation, if there had not been a pistol shot wound in the region of the navel; would you?
A No, sir.
Q And eventually, after the wound had been sutured up,
56
the wound broke out afresh?
A It did.
Q And the would wouldn't have been there, if it hadn't been for this pistol shot wound; would it?
A No, sir.
Q And, after the wound had broken out afresh, the peritonitis set in, and this deceased died; didn't he?
A Yes.
Q And then the death was the result of the pistol shot wound; wasn't it?
A At least in part; yes.
RE CROSS EXAMINATION BY MR. LE BARBIER:
Q Was the pistol shot wound the sole inducing cause of death?
MR. ELY: Objected to.
THE COURT: It is already ansered, I think, but he may answer it again.
A The pistol shot wound was, at least, in part, the cause of his death.
Q What was this area of burn, that you speak of? A? It
was a superficial burn, involving just the superficial layers, of the skin, in the region of the epigastrium.
Q Well what kind of a burn was it?
A It looked as though it had been made by powder.
Q Did you recognize any distinct and positive signs of powder?
A No, sir.
57
Q Did you smell any powder?
A I didn't try to, but I diagnosed it as a powder burn from the history of the case, and the general appearance.
Q were there little pointed marks, like points?
A I
can't say now.
Q Well, I want to see if you can, doctor?
A I cannot.
Q Now, taking your mind back to the time, and it isn't
so very far back, when this patient was exposed for operation, and you having stated that there was an area of burn, character ised, as you say, as a powder burn, if I und restood you cor- rectly, are you able to state whether or not there were
powder marks on this area of burn?
MR. ELY: I object to that. He has already answred that question.
The COURT: I sustain the objection. MR. LE BARBIER: Exception.
BY MR. LE BARBIER;
Q Was this burn very pronounced?
MR. ELY: Why, I object to that. That is spec- ulative entirely. He can descibe it.
THE COURT: I will sustain the objection to the question.
MR. LE BARBIER: Exception.
58
BY MR. LE BARBIER:
Q Describe, if you will, kindly, Mr. Witness, the characte er of this burn?
MR. ELY: Well, I object. He has already de-
scribed the character, and now it is the appearance, if anything. He says it was a powder shot burn.
THE COURT: Objection overruled. You may answer
A It was a small raw area, evidently with destructionof the superficial layers of the skin; and it was, in general out-
line and general appearance, a wound such as comes from pow- der burning on the skin.
Q Did you observe the color of this area of burn?
A Not excepting that it was the raw color, the raw surface. RE DIRECT EXAMINATION BY MR. ELY:
Q Now, doctor, when you saw raw, you mean reddish?
A Reddish, yes.
WALTER H. VOLCKENING, a witness called on be- half of the People, being duly sworn, testified as fol- lows:
DIRECT EXAMIBNATION BY MR. ELY:
Q Now, Mr. Volckening, what is your business?
A I am
59
an architect.
Q And for how long a period of time have you been an arch- itect?
A For twelve years.
Q And you were an architect on the 20th day of July,
1906?
A I was.
Q Did you, at the request of the District Attorney, go
o the premises 309 East 90th street, in the City and County
of New Yourk, on or about the 28th day of July, 1906?
A I did
Q Did you go into premises 309 East 90th street?
A I
did.
Q Did you make a drawing of any part of the premises
309 East 90th street?
A I did.
Q On or about the date mentioned?
A I did.
Q And what part of the premises did you make a diagram or drawing of?
A I made a drawing ofthe living room,
bath room and a part of the bed room, of the rear part of the top flat, east sid.
Q Do you remember what floor it was on?
A I think it was the third floor; I am not sure.
Q Well, now, wait a minute. I show you this paper
and ask you if you ever saw it before. Take it in your hand and look at it?
A Yes.
Q And now I ask you if you know what that purports to
60
represent?
A That represents-
Q Now, yes or no?
A Yes.
Q And I ask you if you know who draw or made those lines on that paper, who made that drawing?
A I did.
Q And I ask you now what that drawing purports to repres- ent? Look at the bottom of that, and read it?
A Diagram
Of fourth floor, in part, 309 East 90th, County, City and
State of New York.
Q And is that the diagram that you made on the 20th day of July, 1906?
A Yes.
Q Is that a correct diagram?
A Yes.
Q And on what s cale is it?
A One-half inch to the foot.
MR.ELY: I offer it in evidence.
MR. LE BARBIER: If your Honor please, I would like to ask a question, before the diagram is admit- ted.
BY MR. LE BARBIER:
Q Does this show the conditionof the apartment, on the night of the 20th of JUly, 1906?
MR.ELY: I object. And it isn't of-
fered for that purpose, at all. It is simply offered for the purpose of giving the jury some basis on which to form an opinion as to the premises in ques- tion.
60
tion. But the physical condition of the premises, on any special occasion, or as on the night of the
20th, it does not repr esent, and it is not claimed that it does represent.it.
MR. LE BARBIER: Now, one question more. BY MR. LE BARBIER:
Q What was the msarurement? I didn't hear you?
A A half inch to the foot. It is marked at the foot of the drawing.
MR. LE BARBIER: If your Honor please, counsel
for the defense objects to the diagram, unless there
be eliminated chairs, tables, sofa and sewing machine, and other movable fictures and furniture in the bath room, and living room, and bed room.
THE COURT: I can only instruct the jury to dis- regard them.
MR.ELY: As regards that, if your Honor please I am perfectly willing that, at the time, it should be-- the jury should be instructed to disregard every bit of the furniture that was found in there.
THE COURT: Everykthing movable, as shown on the diagram?
MR. ELY: Yes, sir. And that such instruction last until such time as they are proved to be in
61
those places on the evening in question. MR. LE BARBIER: And, subject to that, we have no objection.
THE COURT: very good.
MR. LE BARBIER: I would like to ask another question.
BY MR. LE BARBIER:
Q The exit, leading from the living room to the hall, was that a wooden door?
A It was a wooden door.
Q Was there any glass partition there?
A In the hallway?
Q Yes?
A No, sir. That was a solid, four panel door.
Q That was a solid, four panel door?
A Yes, sir. MR. ELY: well, I object. These are not
proper questions, as to the admissibility of this diagram.
THE WITNESS: The living room, you are speak- ing of I suppose?
THE COURT: There is othing before me now. That has been answered.
MR. LE BARBIER: If your Honor please, we don't want to worry the learned Assistant District At-
62 torney.
MR. ELY: oh, you don't worry me, at all.
THE COURT: Have you any further question to ask as to the diagram?
MR. LE BARBIER: Just one more. BY MR. LE BARBIER:
Q What was the character of the partition from the door going into the lliving room, extending down the hall? MR.ELY: I object to this, at this time.
THE COURT: I will sustain the objection.at
this time. That does not go to the admissibility of the alleged diagram.
MR. LE BARBIER: very well. We will get at it later.
THE COURT: It is proper cross-examination,
of course, at the proper time. Is there any objec- tion, Mr. Le Barbier?
MR. LE BARBIER: No, sir; subject to the ex- clusion of the movables at this time.
The Court: Yes. Gentlemen of the Jury, the location of movable articles is to be disregarded by you, until further notice.
(It is admitted as People's Exhibit 2.)
63
BY MR. ELY:
Q Now, Mr. Volckening, I call your attention to People's
Exhibit 2. I notice that there are various words on
spaces on this diagram, which spaces are colored yellow;
and I notice that there are various words on certain other space on this diagram, which spaces are colored pink. You notice
that yourself; don't you ?
A Yes, I do.
Q Now, will you tell me the reason for making some yellow and other pink? Can you tell me that? Yes or no?
A Yes.
Q Now what's the reason?
A The reason is that the spaces colored yellow indicate movable articles, such as chairs or tables; and the parts colored pink, with names on them, are part of the fixtures of the apartment, liked range or tub or toilet, anything of the kind.
Q Such as, for instance, "W.C."?
A Yes; that stands for the toilet.
CROSS EXAMINATION BY MR. LE BARBIER:
Q Were these articles which you have marked yellow
and characterized as movable articles, in that apartment on the 20th day of July, 1906.
MR. ELY: Oh, I object to that. We don't
claim it at all, as far as this witness is concerned. THE COURT: "He may answer.
A Well, the articales that I have marked yellow-- BY MR. LE BARBIER:
Q Now answer yes or no, please?
A Yes; on the day that
I had made my measurements-- BY THE COURT:
Q What day was that?
A The 29th, I think.
63 12
MR. ELY: No; it was the 28th. THE WITNESS: The 28th.
BY THE COURT:
Q Do you know anything about whether or not those art- ieles were in the apartment on the 20th of July?
A No, I don't.
THE COURT: Now, you have it exactly. BY MR. LE BARBIER:
Q In what way did you measure this? By tape or what?
F-1
64
A By tape line or rule.
Q And you measured it personally?
A Yes, sir.
Q And are there any windows, accorfing to the diagram?
A Yes.
Q How many?
A One double window.
Q That is, the living room?
A Yes.
Q On the right hand side of the diagram?
A Yes.
Q What was the condition of that window?
A The light of glass in the lower sash was broken.
Q Was that a whole sash, that extended across the window?
A Yes; it was a very wide window, very wide.
Q And a large window corresponded?
A Yes, sir; with a centre division in the sash; two lights of glass and the lower sash.
Q Yes. What was the condition of those lights of glass?
A Well, one of them was broken.
Q Which one?
A The right hand one, as you faced the window.
Q The right hand one, as you faced the window?
A Yes.
Q Yes; as you faced the window?
A Yes.
Q In what way was it broken Mr. Volkening? MR. ELY: I object.
Q Why, the glass was broken.
65
F-2
BY MR.LE BARBIER:
Q Was there any glass in that lower right hand pane? MR. ELY: Now, I object to that as incompetent, immaterial and irrelevant, as to what it was on the 28th. I don.t kind it---
THE COURT: Yes. If you purpose showing the condition on the 20th. I will permit this, as a perliminary question.
MR. LE BARBIER: Yes, sir; that is our sole object.
THE COURT: Then I will receive it, subject to a motion to strike out, if not connected.
MR. ELY: One moment, if your Honor please.
We don't make any question at all but that the window pane was broken, on the evening of the 20th of July,
1906; I don't make any objection to that; but I do make an objection as to not only this pane but I do being broken on the 28th-- it may be that the whole glass had been removed from the window or anything else, a dozen things may have happened-- but I make no objection to the fact, which I believe to be a
fact, that the window was broken, on the night of the 20th of July, 1906.
66
F-3
THE COURT: Then, if you concede that the window was broken on the night of the 20th, the concession may be noted, and I will sustain the objection to the question.
MR. ELY: And I so stated in my opening.
MR. LE BARBIER: But the concession of the learned Assistant District Attorney doesn't show whether it was of a pinhead character, or a big break.
THE COURT: But its condition on the 28th is no evidence of its condition on the night of the 20th; and, it being conceded that the window was broken, on the 20th, you may show the extent of the break on the 20th, but not on the 28th; and I sustain the objection.
MR. LE BARBIER: Esception. BY MR. LE BARBIER:
Q What was the height from the floor of the living room to the sill of the window, on the right hand side?
A Well, I'll have to examine the drawings. I can't carry those matters in my mind.
Q Here it is?
A Well, I haven't indicated it here.
Q Well, will you kindly indicate it?
A Well, to my
best knowledge, it was about two feet. that's about the
67
F-4
average sill height, twenty inches.
Q Will you kindly take a pencil, wiht his Honor's permis- sion, and kindly indicate it on the diagram?
MR. ELY: Well, I object to his making any manks without measuring. That was from imagination.
THE COURT: You may take the testimony, but don't mark up the diagram.
MR. LE BARBIER: Very well, then. I'll take an exception.
BY MR. LE BARBIER:
Q What was the height?
A Well, I don't remember what was the height from the floor to the sill.
Q Well, figure it out, according to your scale there, and
tell the counsel for the defenseand the Court and jury, what was the height from the floor to the sill of the window?
MR. ELY: Objected to. BY THE COURT:
Q Can you answer the question?
A Not from the diagram.
Q Well, from the diagram and your own recollection of what you saw?
A Well, I can tell you about what the sill was,
but not he exact measurement.
Q Then give your best recollection of it?
A About
68
F-5
twenty-two inches high. BY MR. LE BARBIER:
Q Why can't you give the exact measurement?
A I don't remember wherthre I measured the height of that sill, or not.
Q Will you kindly state, from an examination of People's Exhibit 2, what the size of the window was?
MR. ELY: Why, I object, unless-- BY MR. LE BARBIER:
Q In widht, rather, and in height.
MR. ELY: I object, wunless it appears, it is shown, by the scale on the diagram.
THE COURT: This is calling for the knowledge of
the witness. He may testify as to his own knowledge.
A Well, I would acquire that knowledge by scaling off the width of the window. I haven't got the width marked off--
BY MR. LE BARBIER:
Q Well, can't you tell the width of the window by the scale?
A Why, sure. The width of the daylight opening, or the width of the sash?
Q The width of the--
A Of the sash?
Q The width of the sash?
A Yes, sir; well, it is
about four feet to the height of the window, but I couldn't
69
F-6
give you that exactly.
MR. ELY: He has already said that it was twenty-two inches from the floor.
BY MR. LE BARBIER:
Q Now, from your recollection, Mr. Volkening, what is the height of the window?
MR. ELY: From the floor?
MR. LE BARBIER: From the sill.
A I couldn't tell you.
BY MR. LE BARBIER:
Q Why not?
A I didn't measure it.
Q From your architect's eye, and the best of your recol-
lection, can you state to the jury what the height of the window was from the sill up?
A Oh, about five feet six, perhaps.
I didn't measure the height of the window from the sill to the top.
Q Your attention was in no way directed to the window; was it?
A Well, the fact that the glass was broken. I was to measure that.
Q (Question repeated.)
MR. ELY: I object. He has just answered that question.
THE COURT: Susained.
MR. LE BARBIER: Exception.

70

F-7

BY MR. LE BARBIER:

Q Was your attention directedby anybody to the broken-- to the glass?
A It was.

Q When you examined that window, was the glass in the right lower corner in or out?
A Well, ther was a large hole in

the light of glass. BY MR. ELY:

Q What was that?
A (Answer repeated.) BY MR. LE BARBIER:

Q What was the width of the light of glass?

MR. ELY: In which the hole was, Mr. Le Barbier? MR. LE BARBIER: I put my question.

MR. ELY: Well, then, I object to it, on the ground that it is too indefinite.

THE COURT: I sustain the objection.

MR. LE BARBIER: Why, it is following right in the line of the questions.

THE COURT: The time appears to be too remote. MR. LE BARBIER: That is not the objection urged by the learned Assistant.

THE COURT: It is objected to generally. BY MR. LE BARBIER:

Q What was the length of hte kitchen?
A 18 feet.
Q What was it?
A 18 feet.

Q And width?
A Well, There is two widths. One is 11 feet 10, and the other is 10 feet.

Q The smaller width is nearer the opening of the kitchen door into the hall?
A The entrance into the kitchen hall.

Q What is the thickeness of the partition there in the hall, if you know, Mr. Volkening?
A Well, six inches usually, a plaster partition; six or six and a half inches.

Q It is plaster?
A It is plaster, lath and plaster, and

71
B1
studding inside.
Q Do you know whether it was brick lined or not?
A No, sir.
Q You don't know whether it was or not?
A No, sir; I didn't examine it.
Q You didn't examine it for that purpose; did you?
A No, sir.
Q Now kindly take up the door leading into the bedroom. Was that a door opening in or out, or a sliding door?
A
A swinging door.
Q And was that the same as the door coming in from the hallway?
A Yes.
Q
A swinging door?
A Yes, sir;
A swinging door.
Q They were both swinging?
A Yes, sir.
Q Now let me see that diagram just a moment, please. Between the sitting room, and the bedroom, what was there?
A A window, a sash window.
Q
A sash window?
A Yes, sir.
Q Did you observe the condition of that sash window? MR. ELY: On the 28th?
A On the 28th.
BY MR. LeBARBIER:
Q On the 28th of July, 1906?
A Yes, I did.
Q What was its condition?
MR. ELY: I object, as too remote.
72
2
THE COURT: Sustained.
MR. LeBARBIER: Exception. BY MR. LeBARBIER:
Q How many floors in that building above this particu- lar, if you know?
A I don't know.
Q Eh?
A I don't know.
Q Well, was it a skyscraper, this building? MR. ELY: Oh, I object to that, as immaterial. BY THE COURT:
Q Do you know how may stories this building was?
A To my recollection it was six-- five stories.
Q Was this the top?
A No, sir; it was the fourth floor.
Q The fourth floor?
A Yes, sir.
THE COURT: Now, you have it, Mr LeBarbier. BY MR LeBARBIER:
Q In what direction did the door-- Question withdrawn.
On what side did the door swing, leading from the living room into the bedroom?
A That is indicated on the diagram.
Q As indicated here?
A Yes; in going from the living--
Q Yes?
A It is indicated there.
Q Are the articles marked in yellow here drawn to scale measuraments?
A Yes.
Q That is the table and the chairs?
A Yes.
73
3
REDIFECT EXAMINATION BY MR. ELY:
Q You didn't examine the walls; did you?
A What do you mean?
Q The thickness of the walls of this apartment?
A Well, if I--
Q Yes or no. (Question repeated.)
A No. I didn't
Q And you are giving your best impression of the thick- ness of the wallm where you say it is plaster and studding, as six or six and a half inches, as simply a statement made upon the basis of the general thickness of walls of such buildings; is that right?
A Yes; that's exactly it.
MR. LeBARBIER: Now, I move to strike out that
last answer, as not responsive, and as incompetent and immaterial and irrelevant.
THE COURT: Denied.
MR. LeBARBIER: Exception. THE COURT:
Gentlemen of the jury: Do not talk about this
case, nor permit anyone to talk to you about it, or form or express any opinion thereon, until the case is finally submitted to you.
It is very important, gentlemen, that you be
here on time. The absence of one juror necessarily
74
delays the whole Court. I try to be prompt myself, and you must be prompt also.
You may go, now, until to-morrow morning, at half past ten o'clock.
(The trial was then adjourned until Thursday morning, October 18th, 1906, at 10:30.)
75
THE PEOPLE v. BIAGGIO CALANDRA (CONTINUED). TRIAL RESUMED.
New York, October, 18,1906.
CATHERINE GIGLIO, a witness called on behalf
of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q You are employed, Miss Giglio, at one of the large de- partment stores in the City of New York?
A Yes, sir.
Q And where do you live?
A I live 313 East 90th street.
Q And how long have youlived there?
A We have lived there a year, the 22nd of May.
Q And you lived there, then, on the 20th of July, 1906?
A I certainly did.
Q And for how long a period have you known the defendant?
A I have known him since I was a child.
Q Well, that's only a few years?
A Thank you.
Q And did you know Joseph Ciofolo?
A I certainly did.
Q And how long had you known Joseph Ciofolo? Just as
76
long as you have known the defendant?
A Yes.
Q And was Joseph Ciofolo, or is the defendant in any way connected with your family?
A Joseph Ciofolo was a cousin by marriage. He was married to mymother's brother's only dughter.
Q And on the 20th of July, 1906, was Joseph Ciofolo's wife's mother alive or dead?
A Oh, she was dead at the time.
She hasbeen dead for ten years.
Q And she had been dead for ten years before the 20th of July, 1906?
A Yes.
Q And did you see Joseph Ciofolo, on the night of the 20th of July?
A Yes, sir.
Q And where did you see him?
A I saw him at the house of Mr. Calandra.
Q At themhouse of thendefendant here?
A Yes, sir.
Q About what time was it, Miss Giglio, thatbyou saw
the deceased, Joseph Ciofolo, at the defendant's house?
A It must have been abut seven o'clock. I am not positive of the hour.
Q Well, now, where was the defendant's house?
A He lives at 309 East 90th.
Q And do you remember on what floor the defendant lived?
A The defendant lives three flights up.
77
Q Well, that would be the fourt floor?
A The fourth floor.
Q And do you remember what apartment he had? Whether it was the east or west apartment, inn309?
A I think--
yes, the east apartment.
Q Yes, that's right. And look at the diagram,
pleae, People's Exhibit 2, and see if you can recognize from People's Exhibit 2 what it is?
A This here is the kitchen (Indicating).
Q Well, wait a minute. I don't mean any individual room,
but do you know whose rooms those purported to be?
A Those are
Mr. Calandra's rooms.
Q Tjose are his rooms?
A Yes, sir.
Q And that is his house, in ordinary parlance?
A Yes, sir.
Q And was it in this house that you were, on the night of the 20th of July, 1906--
A Yes, sir.
Q When you saw Joseph Ciofolo?
A Yes.
Q Thank you. Now who else was there, at the time that
you saw the deceased in the defendant's house?
A My mother, my brother, Mr. Calandra and Mr. Ciofolo.
Q Your mother, your brother, Mr. Calandra and Mrs. Calandra and Mr.Ciofolo?
A Yes, sir.
Q And that's all?
A That was all.
78
Q And what were you doing, you and your mother and brother doing there?
A We had called on them, and Mrs. Calandra asked us to spend the evening with them.
Q And you say that, at or shortly after seven o'clock, the deceased came in?
A Yes, sir.
Q Now, was there any conversation between the deceased and the defendant that you heard?
A Now, as he entered up from the stairway, coming up from the stairway, he said--
Q Now just answer the question, yes or no?
A Yes.
Q Now just tell the Court and jury what the conversation was?
A He said, as he came up the stairway--
Q Now who is "he"?
A Joe. As he came up the
stairway, he said, "Oh, I see you are home. Here you are, eating and drinking, and I have been waiting for you all day at the market."
Q At the what?
A At the market, at his place of
business. "Amd I have been waithing for you all day, and I didn't know whether to close or not." Mr. calandra said--
Q The defendant said?
A He says, "Why, you ought to
have known, Joe, if I didn't come at a certain hour, it stands to reason you could have closed the business."
It was said, at Meast on Mr. Ciofolo's part, he was a
little annoyed, as naturally he ought to be in a circumstance
79
like that. Mr. Calandra wasn't pleased, at the time, at his coming.
MR. LE BARBIER: I object to that, and ask that it be stricken out.
THE COURT: Yes. You may tell us what was said and done, but not what you thought.
BY MR. ELY:
Q Now, Miss Giglio, we have got the conversation that
he had, the deceased with the defendant, and the defendant's reply?
A Yes, sir.
Q And please don't give your impression of the manner in which the defendant replied, other than by describing what he did and said?
A Yes, sir.
80
B1
Q Now, did you notice the deceased when he came in?
A Yes, sir.
Q How did he--what did you notice about him, if any- thing?
A Well, in which way do you mean?
Q Well, in any, if you noticed him?
A Well, there was nothing to notice about him.
Q Did you notice whether or not he had been drinking?
A No.
Q Had he been drinking?
A No, he hadn't been drinking.
As far as I know, he seemed in a perfectly sober condition.
Q Now, after the defendant had made the reply to the deceased that you have stated here, what happened?
A Well, he come in, and Mrs Calandra asked him if he would like to have anything to eat, and he said he didn't care to.
Q Mrs Calandra--
A His sister.
Q His sister said to the deceased--
A Yes, sir; and
Mr. Calandra said the same.
Q The defendant said the same?
A Yes, sir. And then
he sat down, and that all ended in talking, and we spent the evening very pleasant together The whole thing blew over. There was no ill feeling whatsoever.
THE COURT: Well, do you want this, gentlemen? It isn't competent evidence here.
MR. ELY: I didn't ask for that, sir.
81
2
THE COURT: well, there is no objection on my part, if you want it.
MR. ELY: I ask to have it stricken out, as it- respensive, if your Honor please.
THE COURT: Strike it out. BY MR. ELY:
Q Now, after this conversation, as I understand, you
and your mother and brother and the defendant and Mrs Calandra and the deceased sat about, eating and drinking and talking?
A Yes, sir.
Q For how long?
A Well, it might have been probably half an hour,
Q And did you hear any further conversation--
A No, sir.
Q Excuse me. Wait a minute. Did you hear any further conversation that you recollect, between the defendant and the deceased?
A No, I didn't.
Q And about what time did your mother and your brother leave?
A Ten minutes of eight.
Q Yes. And who did you leave there? Who went out with you?
A My mother and brother.
Q And who did you leave in the defendant's apartments?
A Mr Calandra and Mrs Calandra and Joe, Mr Ciofolo.
Q That is
the defendant and his wife and the deceased?
A Yes, sir.
82
Q And then you went away?
A We went down.
Q And that's all you know about the case, Miss Giglio?
A That's all I know about it..
CROSS EXAMINATION BY MR. LeBARBIER:
Q Miss Giglio, are you twenty-one years of age yet?
A Yes, sir.
Q Is your brother older or younger than yourself?
A Older.
Q Have you more than one brother?
A Just one brother.
Q Just one brother?
A Yes, sir.
Q What is his first name?
A Vito Giglio.
Q Did you all three go around there tothat house, that night?
A No.
Q You met there at different times?
A Yes.
Q When you went around there, was your mother already there?
A No; I went up with my mother.
Q You went before your mother?
A With my mother.
Q And with your mother--yes, you went to the defendant's place, Mr Calancdra's place, and you arrived there about what time?
A Well, about half past six.
Q About half past six?
A Yes, sir.
Q When was it that your brother Vito came in?
A Well,
after I arrived, Mr. Calandra came, and then my brother came.
83
Q And Mrs Calandra was there all the time; was she?
A All the time.
Q What relation are you, Miss Giglio, to Mr. Joseph
Ciofolo?
A He is a cousin by marriage.
Q He is a cousin by marriage?
A Yes, sir.
Q Prior to Mr Ciofolo calling,was the conversation gen- eral with you all?
MR. ELY: I object to that. That's im- material, incompetent and irrelevant.
THE COURT: It calls for an opinion, of course, but I will allow it, however, because it is within my discretion.
A Yes, sir.
BY MR. LeBARBIER:
Q Well, there was no special subject mentioned, that you recollect?
A No, sir.
Q At the time that you heard Mr Ciofolo coming upstairs, it continued about the came; didn't it?
A Yes, sir.
Q Everybody, as I understand you to say, was in a pleas- ant frame of mind?
MR. ELY: Objected to.
THE COURT: I sustain the objection. I've stricken that out once.
84
BY MR. LeBARBIER:
Q How long before that evening had you been at Mr, Calan- dra's place?
A Well, it must have been quite a long time.
Q Well, a few months?
A Yes, quite that; a few months.
Q Six months, do you think?
A Probably.
Q About six months?
A Yes, sir.
Q While you were all seated there, talking, as you say, was the door of the apartment closed?
A Which door?
Q The door leading out of the hallway?
A Yes; it
was closed.
Q And who was the last one in there, coming into the apartment, before Me Ciofolo called?
A My brother.
Q Your brother?
A Yes, sir.
Q And, after he called, while you were all in the apart-
ment, how long was it before you heard Mr Ciofolo on the stairs?
A Oh, it must have been about twenty minutes; very little
time.
Q About twenty minutes?
A Yes, sir.
Q But, after your brother called, while you were all
seated in the apartment, and talking, the door leading into the hallway was closed?
A Yes, sir.
MR. ELY: Objected to. She hasn't said that they were all seated.
85
THE COURT: Allowed. It is answered. BY MR. LeBARBIER:
Q And while you were all seated there, you say you heard the voice of Mr Ciofolo?
A Well, the bell rang, and the door was opened, and Mr Calandra said, as a joke-- MR. ELY: Objected to. I object to the word
"joke", and ask to have it stricken out. THE COURT: Strike out the word "joke".
MR. LeBARBIER: May it please your Honor, that is a part of the conversation, I submit.
THE COURT: strike it out. It is an opin on. MR. LeBARBIER: Exception.
BY MR. LeBARBIER:
Q Well, go on?
A He said, "Here is another visitor.
Who is this?" And he went out into the hallway, to see who was coming up the stairway.
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Q Who went out?
A Mr. Calandra. Mr. Ciofolo was coming up the stairway and he said, "Oh, there you are."
Q And did you hear this remark, before you saw Mr. Ciofolo?
A As he was coming in from the hallway.
Q Well, did you hear that before you saw him?
A Yes; I heard it before I saw him.
Q And what did he say?
A He said, "Oh, you are here,
and I've been waithing downtown, all day, at business. You
might have lefe me know that you were not coming back, because
I didn't know whether to close the business or not." And that's all there was to it.
Q And then they came into the apartment?
A Yes, sir.
Q And sat down to the table?
A Yes, sir.
Q At the table in the kitchen?
A Yes, sir.
Q At which table? If I understand correctly, you were all seated?
A Yes, sir.
Q How long did you remain there at the table?
A Well, it must have been about half an hour. I am not quite sure.
Q Well, did you remain there until about half past
seven or so?
A We went down, at ten minutes of eight.
Q You went down at ten minutes of eight?
A Yes, sir.
Q Was there any special reason, as far as you can recol- lect, now, Miss Giglio, why it was that you left at ten minutes
87
of eight?
A There certainly was, because Mr. Calandra goes to business at a very early hour of the night.
Q Well, what hour is that?
A Well, we knew that he generally went out at about half past ten or eleven, and it
was a very hot day, and we thought we would go down early, to give him a chance to rest.
Q Did he also say to you that he wanted to go to bed?
A No, sir.
Q Do you remember is winding up the alram clock?
A He did; yes.
Q This is a fact, Miss Giglio, that eigher befoer, or a
little after he wound up the alarm clock, that he begged you and your mother and brother to remain?
MR. ELY: Objected to.
MR. LE BARBIER: I hadn't quite finished the question, your Honor.
By MR. LE BARBIER:
Q (Question continued) Saying that Mrs. Calandra would keep you company?
MR. ELY: Objected to. THE COURT: Sustanined. MR. LE BARBIER: Exception. BY MR. LE BARBIET:
Q Will you kindly state, what, if anything, was said by
88
Mr. Calandra, just before or after he wound up the clock? MR. ELY: objected to, as immaterial, irrelevant
and incompetent.
THE COURT: I cannot see what bearing that may have on this case.
MR. LE BARBIER: Well, of course, your Honor can,t see that now, but we can see it, and will connect it.
THE COURT: You will connect it? MR. LE BARBIER; Yes, sir.
MR. ELY: But it is incompetent, any way, for
the defendant to call for anything that he said, that we have not brought out. We haven't asked for the conversation between them.
THE COURT: I cannot see its relevancy; but, nevertheless, it is the usual rule to permit counsel, when they say that they will connect, and that its relevancy will be made to appear, to permit the testimony.
MR. ELY: But it can,t be made competent, a conversation between the defendant and a third party.
THE COURT: Then I will receive it, subject to a motion to strike out, unless connected.
89
MR. LE BARBIER: Of course, we propose to connect it.
BY MR. LE BARBIER:
Q (Question repeated)
MR. ELY: Now, I object to that as too inde- finite. State to whom, in the first place, before the question is answered.
MR. LE BARBIER: Now, your Honor, they are all there, these four or five or six people.
THE COURT: I have ruled. It is received, sub- ject to a motion to strike out, if not connected. and the District Attorney again interrupts me. MR. ELY: I have the right to interrupt, be- cause it is too indiefintite.
THE COURT: The witness will answer the ques- tion.
(The question is repeated by the stenographer) THE WITNESS: Shall I say it?
BY MR. LE BARBIER:
Q Yes. To Mrs. Calandra?
A Yes. "Why" he said,
"Don't go down so early. I'm not winding up this clock be- cause I want to hurry you out," and I said, "Bow you know,
90
Brazi, we will always have to go down, and what's the use of keeping you up?" And he said, "Oh, you can stay longer," and I said, "Well, it is ten minutes of eight, and what's
the use of waiting that much longer nay way, becouse we will have to go any way?"
MR. ELY: I object to that, and move to strike it out.
THE COURT: Well, I will take the motion under advisement, and will order it stricken out, if not connected.
MR. LE BARBIER: May I ask for information from the Court? of course, I appreciate what your Honor says, that your Honor does not see the relevancy of this, now. Of course, we have been preparing our defense, and know the rellevancy of matters.
THE COURT: Well, that was said for counsel,s benefit. I instruct the jury to disregard that.
BY MR. BARBIER:
Q Now, what was the pet name of the degendant? MR. ELY: I object dto that.
A The pet name? There was no pet name. MR. LE BARBIER: I withdraw the question.
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BY MR. LE BARBIER:
Q What was the name by which the defendant was known to this little circle there, that night?
MR. ELY: I object to that.
THE COURT: It may be answered.
MR. ELY: What she called him, I don't object to.
A Well, his name is Eiaggio, and we used to call him
Brasi.
VITA GIGLIO, a witness called on behalf of the
People;
THE COURT: This witness, I am told, re- quires an interpreter. The official interpreter is engaded in Part I, and I have no doubt we can get another interpreter, but the District Attorney suggests that the daughter, the last witness, interpret. Is
that consented to?
MR. LE BARBIER: Why, I think so.
MR. ELY: You have your own Italian interpreter sitting by you.
MR. LE BARBIER: Yes; I consent to that. (Miss Catherine Giglio is sworn as interpreter,
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2
by consent.)
(the withness is sworn, through the interpreter). DIRECT EXAMINATION BY MR. ELY:
Q Now where do you live, Mrs. Giglio?
A 313 East 90th street.
Q And do you know the yound lady standing by you there?
A Yes, sir.
Q Now who isshe?
A Miss Kate Giglio.
Q Well I know it, but who isshe? I know what her name is?
A She is my daughter.
Q Your daughter?
A Yes, sir.
Q NOw do you know the defendant, Biaggio Calandra?
A Yes, sir.
Q Do you see him here?
A Yes, sir.
Q Where is he?
A He is there (Indicating).
Q Now, how long have you known the defendant?
A Oh, more than twenty years.
Q Now did you know Joseph ciofolo?
A Yes, sir.
Q And for how long a time before the 20th of July, 1906 had you known Joseph Ciofolo?
A Thirty-two years.
Q And was Joseph Ciofolo any relation or connection of yours, by marriage or blood?
A A nephew, by marriage.
Q And where were you on the evening of the 20th of July,
1906?
A Mr. Calandra's home.
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Q And who was there?
A We were five of us there, myself, my daughter, my son, Mr. Calandra and Mrs. Calandra, and, afterwards, Joe came, after supper.
Q That is, Joseph Ciofolo, the deceased?
A Yes, sir.
Q Now, did you hear any conversation beteen the defend-
ant and Joseph Ciofolo, as Joseph Ciofolo came into the defend- ant's apartments, on the evening in question? Yes or no that
calls for?
A I heard him speak, but I didn't understand him, because he spokein English.
Q Well did you hear anybody reply to Joseph Ciofolo,
when, as you say, Joseph Ciofolo spoke?
A Mr. Calandra ans- weard him again, but he answered him in English.
Q And you didn't then understand what that conversa- tion was?
A No.
Q Now about what time did JOseph Ciofolo enter the apart- ment of the defendant?
A I think about 7:30.
Q And about what time did you leave?
A About ten minutes of eight.
Q Who, if anybody, left with you?
A Just us three.
Q Well who are us three?
A My daughter, myself and my son.
Q And your son's name is Vito?
A Yes, sir.
Q And who did you, if anybody, and your daughter and your son, Vito, leave in the defendant's apartments, whe n you all
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went away?
A I left the three, Mr. and Mrs. Calandra and
Joseph Ciofolo.
Q Now did you notice Joseph's appearance on the night of the 20th of July, 1906, when he came in?
A Yes, sir.
Q And did you notice his condition?
A He was sober. MR. LE BARBIER: No questions I move
to strike out the last answer as a conclusion, and as immaterial, irrelevant and incompetent. THE COURT: Yes; there is no proof here. Strike it out.
CARRIE FILORAMO, a witness called on behalf
of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q You are a sister of the defendant' swife?
A Yes, sir.
Q And where do you live? Are you Mrs. or Miss Filoramo?
A Mrs.
Q What's the name of your husband?
A Frank Filoramo.
Q And where do you reside, Madame Filoramo? Where do you live?
A 169 East 91st.
Q And how long have you lived there?
A About four
95 years.
Q And what is the name of your sister?
A Angelina
Calandra.
Q And she is the defendant's wife?
A Yes, sir.
Q How long have you know the defendant?
A How long he is married?
Q No. How long have you known the defendant?
A Oh,
I have known him sincehe wasa boy, from the old country.
Q Well, is that thirty years or twenty years?
A No;
he is ten years married with my sister.
Q No. I am asking you how long you have known him?
A Ten years since he is married; and then I have known him since he was in I aly,a boy, about eight years olf.
Q Ancd then you have known him for abut twenty-eight years; have you?
A Yes, sir.
Q Now do you know Celia Menjanara?
A Yes.
Q And who is she?
A My brother-in-law's bookkeeper.
Q This defendant"s bookkeeper?
A Yes, sir.
Q And did you see Celia Menjanara and the defendant and others at a picnic, on July 4, 1905?
A Yes, sir.
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MR. LeBARBIER: Objected to, on the ground that it is improper and incompetent and irrelevant.
THE COURT: I will overrule the objection. It is a proper question.
MR. LeBARBIER: Exception. This is in 1905, Your Honor; that is a year ago in July; and the opening of the District Attorney was, whatever he meant by it, I don't know, but he stated that they were living together afterwards.
MR.ELY: Now, I don't mind, if your Honor
please. I will allow the answer to be stricken out, if it is objected to, and I will withdraw the ques- tion.
THE COURT: Very well. Then there is no occa- sion for me to rule.
BY MR. ELY:
Q Now, Madam Filomano, do you know of your own knowledge whether or not, form the 5th day of July, 1905, up to the
20th day of July, 1906, the defendant and your sister contin- uously lived together?
MR. LeBARBIER: Obhected to, as incompetent. Furthermore, may it please your Honor, it is proceed- ing upon an assumption of facts, sought to be in-
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jected in the case.
THE COURT: I do not see the relevancy of it, but, of course, Rome was not built in a day, and, of course, I will permit counsel, as I have permit- ted you to build up his case, and I will receive it subjtect to a motion to strike out if not connected. MR. LeBARBIER: Exception.
MR. ELY: If that is objected to, I don't care
to ask it of this witness. I have other witnesses on the subject.
THE COURT: Very well. BY MR. ELY:
Q Do you remember the 15th of July, 1906?
A Yes, sir.
Q And did you see the defendant anywhere with your sister, on the 15th of July, 1906?
A No, sir.
Q Were you at Bensonhurst?
A Bensonhurst?
Q Yes?
A I am.
Q Will you answer that, please?
A I was there.
Q And did you see the defendant, that is, Calandra, and your sister, at Bensonhurst?
A Yes, sir.
Q And what day was that?
A I couldn't remember very well the day.
Q Well, was not that Saturday, the 15th of July?
A On, that was on Sunday.
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Well, Sunday.
A Yes, sir.
Q And it was about the 15th of July? It was a few days before the 20th of July; wasn't it?
A Yes, sir.
Q Now, just tell me who were at Bensonhurst, on the 15th
of July, or about that date, when your sister and the defendant were there?
MR.LeBARBIER: Objected to, on the ground that it is immaterial, irrelevant and incompetent. THE COURT: She may answer that question. MR. LeBARBIER: Exception.
A Well, there was in Bensonhurst I, and my sister, and my husband, and Mrs Meniscalca and her husband, at Mr Meniscal- ca's house.
Q Now did you see Joseph Ciofolo there, on that day?
A I saw him, onnthat day, but not at Mrs Meniscalca's house.
Q Was this at Mr Meniscalca's house?
A Yes, sir.
Q Now, do you know who the defendant came there with, to Mr Meniscalca's house?
A He has come with Ciofolo.
Q He came with Joseph Ciofolo?
A Yes, sir.
Q And who was Joseph Ciofolo?
A My brother.
Q Your brother?
A Yes, sir.
BY THE COURT:
Q Do you mean the deceased?
A Yes, sir.
Q And do you remember--did you hear any conversation
99
between the defendant and your sister, Mrs Calandra?
A No, sir.
Q Do you understand my question?
A Yes, sir.
Q (Question repeated.)
A No, sir.
Q Did you see the defendant and your sister do anything?
A No, sir.
Q Did you hear the name of Celia Manjanara mentioned on that day?
A No, sir.
Q Did you see Dr Marena there, on that occasion?
A Yes, sir.
Q Did you hear anything that Dr Marena said to the de- fendant and to your sister, Mrs Calandra?
A Dr Marena don't say anything to the defendant.
Q I beg pardon. Please answer my question?
A Now that--
Q (Question repeated.)
A The defendant wasn't there.
Q Why, the defendant came to Bensonhurst, to this house;
didn't he?
A Yes.
Q And he came with your brother, the deceased; didn't he?
A I don't see him come with my brother.
Q Well, you just told us, a few minutes ago, that he
come with your brother?
A No; I don't see them together. Cross-examination: None.
100
ALBERT BAUER, a witness called on behalf of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Mr Bauer, what is your business?
A Optician.
Q Optician?
A Yes, sir.
Q Where are you engaged in business?
A 1266 Lexing- town avenue.
Q And about what street is that?
A 85th and 86th.
Q And where do you live?
A 336 East 90th.
Q And how long have you lived at 336 East 90th?
A Well, the past two years.
Q Were you living at 336 East 90th street, on the 20th of July, 1906,
A Yes, sir.
Q What were you doing then? What were you working at then?
A Optician.
Q And did you go to 309 East 90th street, on the night of the 20th of July, 1906?
A Yes, sir.
Q About what time?
A Well, around eight o'clock; a little after.
Q And, prior to going into 309 East 90th street, had
you heard any shouts, yes or no?
A Yes, I did, as I come near there.
Q Now, please. Yes or no?
A Yes, sir.
Q And then you went into 309 East 90th street?
A Yes,
101 sir.
Q Where did you go in the premises, 309 East 90th street?
A Where did I go?
Q Yes.
A On the third floor.
Q That is, you traverse three fligths of stairs?
A Three flights of stairs.
Q And when you got up onto the fourth floor, what did you see, if anything?
A I met a man standing in the hall.
Q And about how far away was this man, who, you say, was standing in the hallway, form the stairway?
A About three feet; three to four feet.
Q About three or four feet from the stairway?
A Yes, sir.
Q And what, if anything--did you notice the man? Yes or no?
A Did I notice him? Yes.
Q And what did you notice about him?
A He seemed to be excited.
Q Did you notice anything about his clothes, or his hands, or anything of that description?
A Well, I noticed a revolver in his hand.
Q You saw a revolver in his hand?
A Yes, sir.
Q And he was about three or four feet from the head of the stairs?
A Yes, sir.
102
Q Now, I show you this article, and ask you if you ever saw that article before?
A It looks like the one he had in his hand.
Q Now, please. I ask you a question. Did you ever see that article before? Yes or no.
A Yes.
Q Now I ask you when you saw that article? On what night?
A The night of July 20th.
Q And where did you see that?
A In the man's hand.
Q In the hand of the man who was standing three or four feet from the head of the stairway, on the fourth floor?
A Yes, sir; on the fourth floor.
Q And What, if anything, did you do with that revolver?
A Took it away from his hand.
Q And then what did you do with it?
A Dropped it on the floor.
Q And then, after that, what did you do?
A I went down the stairs.
Q And, as you went down the stairs, did you see the
man, who, you say, was standing three or four feet from the head of the stairs, do anything?
A Well, he fell down be- hind me, as I was going down.
Q Fell down where?
A In the hallway.
Q He fell down in the hallway, as you were going down-
103
stairs?
A Yes, sir, as I was going down.
Q And didyou notice anything about the clothes of this man, at this time?
A No, sir; I didn't take no notice.
Q And then you ran downstairs, or you went downstairs;
did you?
A Well, I ran downstairs.
Q And then who, if anybody, did you see?
A Well, I
met Officer Tarpey.
Q And did you say anything to Tarpey? Yes, or no, now, please?
A Yes, sir.
Q Now, after you said something to Tarpey, what heappened?
A Well, he went upstairs.
Q And what did you do?
A Well, I went on to work, because I generally go to work--
Q Now, please. I didn't ask you anything about that.
And did you return again to the premises 309 East 90th street, that night?
A That night; yes.
Q Now, do you see this man standing here (indicating)?
A Yes.
Q Do you know who he is?
A Officer Tarpey.
Q And is he the person that you sayt you saw, as you descended from the fourth floor of 309 East 90th street, on the evening of July 20th, 1906?
A Yes, sir.
Q Now, about what time did you return to the premises
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309 East 90th street, on the evening of the 20th of July?
A Twenty or twenty-five minutes past eight.
Q Yes. And whom did you see, when you returned there?
A Well, I seen the defendant.
Q Where was the defendant.
A In the room, with Officer
Tarpey.
Q And did you see the person who, you say, you took this article from when you returned?
A Yes, sir.
MR. ELY: Now, if your Honor please, I offer this article for identification.
(It is marked People's Exhibit 3 for Identifi- cation.)
BY MR. ELY:
Q And did you know who the person was from whose hand you took People's Echibit 3 for Identification?
A That was the man that was shot.
Q Yes. Well, that's all right. Now, do you know who he was?
A I don't know. I only met him, that night.
Q Did you ascertain who he was?
A Yes. Ciofolo; isnt it?
Q Yes, Ciofolo.
A Yes. I learned that afterwards.
Q And did you see Ciofolo upon your return? You say you did see Ciofolo upon your return? You say
you did see Ciofolo upon your return to 309 East 90th street, about twenty-five minutes past eight?
A Yes, sir.
105
Q Where was he then?
A Lying in the hall still.
Q And did you notice him then?
A Well, I didn't take much notice of him.
Q Well, yes or no. If you did, say so, and, if you didn't, tell me?
A No.
Q Well, at any time, did you say anything to Ciofolo?
A No, I didn't.
CROSS EXAMINATION BY MR. LeBARBIER:
Q How old are you, Mr Bauer?
A Twenty-six, past
Q Married?
A Yes, sir.
Q Did you have any business to go into the house 309
East 90th street, that night?
A No, sir.
Q You were passing, as I understand it, in the street?
A Yes, sir.
Q And, before you went into the house, what was the first thing that attracted your attention?
A The shouting of mur- der.
Q You heard loud shouts of murder?
A Yes, sir.
Q By different people?
A Yes, sir.
Q Did these shouts come from that particular house? MR. ELY: Objected to.
BY MR. LeBARBIER:
Q If you know?
106
THE COURT: Answer.
A I couldn't really tell you. It seemed to come from the other side.
MR. ELY: Well, I object to that, and ask to have it stricken out.
MR. LEBARBIER: Very well. THE COURT: Strike it out. BY MR. LeBARBIER:
Q At all events, that was the occasion of your going into those premises?
A Yes, sir.
Q Now, having entered those premises, and as you were going up the stairs, did you hear any shouts?
A All through the house.
Q Of waht?
A Murder.
Q Police?
MR. ELY: I object. Now, there is no necessity for counsel to testify.
THE COURT: Objection sustained. Yes, don't lead.
MR. LeBARBIER: Is it excluded on the ground that it is leading?
THE COURT: Do not lead. BY MR. LeBARBIER:
Q Did you hear any shouts, besides that of murder?
107
A Help.
Q Any other word?
A Not to my recollection.
Q Any word with reference to the Police Department? MR. ELY: I object to that. He has already
testified that he didn't hear anything else, and it
is incompetent, anyway, to him to have said what he heard, and I didn't object, but I do now.
BY MR. LeBARBIER:
Q Who was this man that you have been questioned about, without your really identifying him until the very last question put to you by the learned Assistant? Who was this man at the head of the stairs?
A Well, as I found out afterwards, Joseph Ciofolo.
Q It wasn't the defendant, Biaggio Calandra?
A No, sir.
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Q Did you see Biaggio Calandra, the defendant, up
three at the head of the stairs, with a revolver in his hand? MR. ELY: Objected to as not within the soope of
the examination and it is leading.
THE COURT: I will sustain it, as leading.
MR. ELY: I haven't asked him any question about the defendant being there, at the head of the stairs. THE COURT: It is leading.
BY THE COURT:
Q Did you see the defendant at the top of the stairway?
A No, sir.
MR. LE BARBIER: Was that objection pressed by the learned District Attorney, your Honor? THE COURT: The matter is disposed of now. I
have asked a proper question, and givin the informa- tion that you desired.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Did you see the defendant anywhere near the dead man, as we claim?
A No, sir.
Q Did you see the defendant -- don't answer this ques- tion -- there with a revolver?
MR. ELY: I object. In the hallway or in the room, or where?
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MR. LE BARBIER: Anywhere there. BY THE COURT:
Q Did you see the defendant at all?
A No, sir; not at that time.
BYMMR. ELY:
Q And that time is when you first went up?
A Yes, sir.
BY MR. LE BARBIER:
Q When you went up there, and saw the deceased, then alive, at the top of the hallway, I understand you to say that you went over to him?
MR. ELY: I suppose you mean the top of the stairs?
MR. LE BARBIER: Yes; the top of the stairs. BY MR. LE BARBIER:
Q You went over to him?
A Yes, sir.
Q You say youfound him excited?
A Kind of excited.
Q In what way?
A Standing there, nervous.
Q Standing?
A Kind of shaking.
Q Talking?
A Not a sound out of him.
Q Did you hear him yell murder?
A No, sir.
Q Or make use of the word help?
A Not him. MR. ELY: I object. He said not a sound out of
him, that covers there two questions that the counsel has asked.
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MR. LE BARBIER: May I proceed without interrup- tion, your Honor.
MR. ELY: I object, and I have the right to object.
THE COURT: Proceed. Objection sustained. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q When you advanced towards him--
A Sir?
Q When you advanced towards him, with the revolver in his hand, did you say anything?,
A No, sir.
Q Did you seize hold of the revolver?
A Hold of his hand, first.
Q Did you have any difficulty inntaking the revolver from him?
A Yes.
MR. ELY: I object.
THE COURT: It is already answered. BY MR. LE BARBIER:
Q Tell us, if you had any diffioulty, what you did? THE COURT: He said yes.
BY THE COURT:
Q Now what did you do? Let us hear all about it?
A I
forced the revolver out of his hand.
Q Tell us all about it?
A Well, I forced the revolver
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out ofmhis hand.
Q And what do you mean, when you say you forced it out of his hand? Did you have to use force to take it out?
A Yes, sir.
Q And it required force to remove it?
A Yes, sir.
Q Is that your menaing?
A Yes, sir.
BY MR. LE BARBIER:
Q How long did you remain there then?
A After that?
Q Yes?
A About a minute.
Q At the time that you took the revolver from the deceased,
was there anybody there at the top of the stairs, besides the de- ceased and yourself?
A Yes, sir.
Q Who?
A Two women.
Q Was anything said by them?
A No, sir.
Q Besides these two women, were there anybody else pres- ent at that particular time?
A No, sir.
Q Were there anybogy ele present at that particular time, prior to your going down the stairs?
A Not on that landing.
BY MR. ELY:
Q You mean on that floor?
A Yes: On that floor. BY MR. LE BARBIER:
Q As you went down the stairs, at that particular time,
that is to say, after taking the revolver from this man, had
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Officer Tarpey yet arrived?
A He was in front of the hosue.
Q No. Had he yet arrived up where you were, with
the dead man?
A Not upstairs.
Q When you went to go upstairs, did you observe the position of the deceased, that is, the live man then, Ciofolo?
A I didn't take notice.
Q Do you know whether he continued standing up, or sat down, or what did he do?
A No, he fell right down behind me, as I went down, he fell behind me.
Q Fell down the stairs?
A No, sir; in the hall.
Q Fell down in the hall?
A Yes, sir.
Q I mean to ask, was it a fall?
A Yes, sir.
Q He fell down?
A Yes, sir.
Q Did you observe, while you were up there, on the top of
these stairs, from what apartment Ciofolo had come?
A No, sir.
Q Did you observe any door opne?
A Yes, sir.
Q Eh?
A Yes, sir.
Q On what side?
A Both sides.
Q Both sides were open?
A Yes, sir.
Q Do you know who those women were?
A No, sir, I
don't.
Q Have you seen them since?
A I couldn't recognize
them, if I did see them, because they had their hands up to thier face, crying (Illustrating).
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RE DIRECT EXAMINATION BY MR. ELY:
Q Now how far off from the -- from Ciofolo,-- were
there two women when you saw Ciofolo standing within three of four feet of the head of the stairs?
A Well they were away in the
back of the hall, at the door.
Q Now please. I can't tell. Just estimate as nearly
as you can whether it was one, two, three, four, five, six, or ten or twenty feet?
A About four feet away.
Q About four feet from Ciofolo?
A Yes, sir.
Q And did you notice in front of which apartment they were standing, whether it was the easterly or the westerly apartment?
A Standing between the two.
Q Right between the two?
A Yes, sir; against the back.
Q Against the back of the hall?
A Yes, sir.
q And then they were in the extreme back of the hall; were they?
A Yes, sir.
Q And just between the two doors?
A Yes; just be- tween the doors.
Q Now did you notice what hand this Ciofolo held the revolver in?
A The right hand.
Q Was it up ordown, or now?
A It was downward.
Q At his side, like that (Illustrating)?
A Yes, sir.
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Q Now just show the Court and jury what you did to
take the revolver from him?
A Grabbed his wrist with my left hand, and put my knee behind his foot, and took the revolver away (Illustrating with officer Fitzsimmons), and threw the revolver down on the floor, then ran right downstairs.
Q And then it was immediately after you ran downstairs, that you saw the deceased fall on the floor behind you?
A Just as I reached the stairs.
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PEOPLE v. BIAGGIO CALANDRA.
MICHAEL TARPEY, a witness called on behalf of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Tarpey, you are an officer connected with the Munic- pal Police Force of the City of New York?
A Yes, sir.
Q And how long have you been connected with the Munici- pal Police Force of New York City?
A Nineteen and a half years.
Q And, on the 20th of July, 1906, how were you assigned?
A I was out on post.
Q You were not connected with the Court squad then; is that right?
A No, sir.
Q You were a patrolman?
A I was on patrol, that even- ing, yes, sir.
Q And to what precinct were you attached?
A Twenty- eight.
Q And when were you transferred from the Twenty-eighth?
A August 3d, last.
Q Now, on the 20th of July, 1906, what your were you doing?
A I was doing the tour from 6 P.M. to 12, midnight.
Q And is that the early or late your?
A It is known as
the early tour.
Q From 6 P.M. to midnight?
A Yes, sir.
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Q And what was your post?
A My post was 89th and
90th streets from the River, from Harlem River, to Fifth avenue.
Q Now where were you about eight o'clock on the evening
of the 20th of July, 1906?
A I was on the northwest corner of Second avenue and 90th street.
Q Did you hear something, some cry, or did somebody make some communication to you?
A I heard nothing, sir.
Q And did you go, at any time, on the night of the 20th
of July, 1906, to the premises 309 East 90th street?
A Yes, sir.
Q And what time did you go there?
A About five minutes to eight.
Q And, just prior to that, you had been standing where?
A On the northwest corner of 90th street and Second avenue.
Q 90th streetand Second avenue?
A Yes, sir.
Q Now, between what avenues is 309 East 90th street?
A It is between Second avenue and First avenue.
Q And how far is it from Second avenue?
A To 309?
Q Yes. How many houses down from Second avenue is 309?
A Well, there is 301, 303, 305, 307, and 309.
Q Then it is the fifth house?
A Yes, sir.
Q And prior to your going to 309 East 90th street,
had you heard any noises? Yes or no.
A No, I heard no noise.
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Q Prior to your going to 309 East 90th street, did any- body speak to you?
A Yes.
Q Now, I asked you that a few minutes ago, and you said no to the same question?
A You asked me if I heard any notise. That's the way I understand it.
Q No. You said that you had no talk with anybody?
A Well, I thought you asked me about if I heard any cry.
Q Well, did somebody say something to you?
A Yes.
Q Then you didn't understand that question that way, when I asked you before?
A No, sir.
Q And then when somebody made some communication to you, you went to 309 East 90th street?
A Yes, sir.
Q And did you see the witness who was in the witness
chair when you were called in here, and you were standing there at the rail (indicating)?
A I didn't see him then.
Q Now, you understand English; don't you? (QUestion repeated.) When you were called in here, and identified at the rail?
A Yes, sir.
Q Well, now, try and listen and understand the questions.
Now did you see that person-- do you know what that man's name is?
A Yes.
Q What is it?
A His name is Mr Bauer.
Q And did you see Bauer at any time on the night of the
20th of July, 1906?
A Yes, sir.
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Q And when, relatively to you entering the premises 309
East90th street? Do you understand that?
A Yes, sir.
Q Relatively to your entering those premises, when did you see Bauer?
A I seem him after I brought the--
Q Now, do you understand me? I am asking you r relatively to your entering the premises, that is, about what time, with respect to the time you entered the premises 309 East 90th street, did you see Bauer?
A About ten minutes afterwards.
Q After what?
A After I entered.
Q Then where did you see him?
A I seen him in the hallway on the fourth floor.
Q Didn't you see him as you came--as you entered, and came out?
A I didn't notice him, at that time.
Q Did you notice a man passing you?
A yes, sir.
Q You noticed a man passing you?
A Yes.
Q But you didn't notice his indentity?
A No, sir.
Q Now, prior to the 20th of July, 1906, you were not
acquainted with the person named Bauer, whom you saw in the witness chair, to-day?
A NO, sir.
Q Then you entered the premises 309 East 90th street, about eight O'clock in the evening of the 20th of July, 1906?
A Yes, sir.
Q Now, when you went into the premises, what did you do? Don't give me any conversations of any kind, unless they are
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asked for. What did you do?
A I asked who done the shooting.
Q You asked who done the shooting, you say?
A Yes, sir.
Q Didn't you just hear me say to you, under no circum stances, to give any conversation? And isn't, "I asked who done the shooting", conversation? Now, you understand Eng- lish; don't you?
A Yes.
Q Well, then, try and do as you are told, with respect
to answering the questions that are propounded to you. MR.ELY: Now I will agree to have that
stricken out.
MR. LeBARBIER: Very well.
THE COURT: Well, strike it out. Go on.
(The question is repeated by the Stenographer.) BY MR. ELY:
Q Now, do you understand that question?
A Yes, sir.
Q Now, then, you may answer it?
A I went upstairs to the fourt floor.
Q And, when you got upstairs to the fourth floor, what,
if anything, did you see?
A I seen a man lying across the hall, at the head of the stairs.
Q Yes. Now, Tarpey, did you see whether the man who,
you say, was lying across the hall, at the head of the stairs-- I will withdraw that. Did you see how the man was lying? Whether on his face, or his side, or his back, when you saw
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this person lying across the hall, on the fourth floor? Yes or no that is. Did you see?
A Yes, I saw him.
Q And how he was lying?
A Yes, sir.
Q And how was he lying?
A He was lying partly on his left side, with his head partly against the wall.
Q And was he right across the hallway?
A Yes, sir.
Q All the way across?
A Yes; as far as his length wauld go.
Q Yes?
A Right across the hall.
Q And his head was up against the wall?
A Yes, sir.
Q Now, did you stop and look at him. as you saw him lying across the hallway, that way?
A Yes, sir.
Q Now, just please tell us what you observed?
A I
observed that his clothes were bloody.
Q Whereabouts, Tarpey?
A In the body, sir; his coat
(indicating the stomach.)
Q Well, you are pointing at his stomach. Is that what you mena?
A Yes, sir.
Q And then this man's clothes were bloody upon the stom- ach?
A Yes, sir.
Q Now go ahead. What else did you see about this man that we are talking of now?
A That's all I observed then.
Q That's all you observed about him then?
A Yes, sir.
Q Now, do you know who that man is that you saw lying
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across the hallway, with blood on the stomach of his clothes?
A I didn't know then, but--
Q Now, Tarpey, will you listen to the question and an- swer it? (The question is repeated by the Stenographer.) BY MR. ELY:
Q Do you understand that question?
A I do, sir. He was the injured man. I afterwards found out his name.
Q Well, I didn't ask you when, but I ask you do you now know he is? The trouble is you either do not understand
English, or do not understand my question, and I will have each one repeated to you, so that we will have no difficulty in
seeing that you do know the true meaning of the question. Well, who was he?
A Well, it is the same pro-
nunciation; yes.
Q Now, do you know what has become of Joseph Ciofolo?
A Yes, sir.
Q What has become of him?
A He died.
Q And, after seeing Joseph Ciofolo, lying across the
hallway, as you have said, what did you do them? Don't give me any conversation. Now do you understand that question? (The question is repeated by the Steongrapher.)
A Yes, sir. I told some one to ring for an ambulance.
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Q Do you remember my having told you not to give any conversations, unless they were asked for. Do you remember that, Tarpey?
A Yes, I do.
Q Is, "I told somebody to ring for an ambulance," a conversation?
A I thought it was an answer.
Q Is that a conversation? Now is it. Now, you must remember not to give conversations. Did you hear me?
A Yes.
Q You may say, "I said something to somebody." But you
must not give any conversation. Now, do you understand me? You must not give any conversation, unless it is asked for?
A Yes.
Q I repeat, now, after you saw the mna lying there,
whom you subsequently ascertained was Joseph Ciofolo, across the hallway, as you have stated, what did you do?
A I went
into the room.
Q Into what room?
A Into the kitchen.
Q Yes. The kitchen of whose apartment, if you know?
A Of the defendant's.
Q Yes. And, before going into the defendant's apart- ments, had you ever seen this article, People's Exhibit 3 for Identification (indicating)? Yes or no.
A No.
Q Did you see People's Exhibit 2 for Identification
on the night of the 20th of July, 1906?
A Did I see it? Yes.
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Q When did you see it, how long after you had been in the premises on the fourth floor of 309 East 90th street, did you see People's EXhibit 3 for Identification?
A About five minutes.
Q And, before you saw it, you had gone into the defend- ant's aprtments?
A Yes, sir.
Q Where were you when you saw People's Exhibit 3 for Identification?
A I was-- I came out again. I was right in the doorway of the kitchen and the hall.
Q You were in the hall?
A Yes, sir.
Q And in whose possession--where was the revolver, this
People's Exhibit 3--strike out, revolver. Where did you first see it?
A It was in the hands of a young man.
Q Yes. And do you know who that young man is?
A Yes.
Q Who was it?
A Mr. Erb.
Q Mr. Erb?
A Yes, sir.
Q And what did Erd do with this revolver, if anything?
A He put it under my arm, handed it to me.
Q Yes. Now, Tarpey, continuting to direct your atten- tionfor the moment to the revolver, I ask you
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were standing in the hallway on the fourth floor of premises
309 East 90th street, on the 20th of July, 1906, shortly after 8 o'colock?
A Yes, I can identify it.
Q Positively?
A Positively.
Q And, from the time-- did you break that revolver your- self, that night?
A Yes, sir.
Q And, of course, breaking it is doing what?
A Sir?
Q Breaking it is doing what?
A Well, it is parting It
like this (illustrating), disconnecting it, or unhinging it.
Q Why, it is opening it; isn't it?
A Yes.
Q Just break it now, You have seen a revolver before; haven't you?
A Yes, certainly; but some of them are dif- ferent.
Q Well, you broke that on the night in question, didn't you?
A Yes. But it is very rusty now. I didn't have such trouble as that before. Its rusty now, sir.
Q You can't do it?
A I say it is rusty, now.
Q Let me have it. I'll open it. Now, that's the way you broke it; isn't it (illustrating)?
A Yes, sir.
Q And when you broke this People's Exhibit 3 for Iden- tification, what, if anything, did you find in People's Ex- hibit 3 for Identification?
A I found three discharged cartridges.
Q That's right. Go ahead.
A Three discharged cart-
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ridges, and two filled ones, two that were not discharged.
Q Now, I show you this article, and ask you to take it
in your hand. Now, look at the contents. Now, I ask you, after looking at the contents of that envelope, whether you ever saw the contents of that envelope befoer?
A Yes, sir.
Q And I ask you when you saw the contents of that envel- ope?
A The evening of the 20th of July.
Q And where did you see the contents of that envelope, on the evening of the 20th of July, 1906?
A In the station house.
Q Yes. And whereabouts were those articles when you first saw them?
A They were in the pistol, sir.
Q That's it. And they were in this article (indicating
People's Exhibit 3 for Identification)?
A Yes, sir.
Q And you saw those three articles in People's Exhibit 3 for Identification, when you broke People's Exhibit 3 for Identification, in the Station House?
A Yes, sir.
Q Now, where is the station house?
A It is in 88th
street, between First avenue and Avenue A, about the middle of the block.
Q From the time that People,s Exhibit 3 for Identifica-
tion had been handed to you, in the premises 309 East 90th street, by Erb, up to the time that you opened People's Exhibit 3 for Identification, and found in it the articles that
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you now hold in your hand, had People's Exhibit 3 for Iden- tification been out of your possession?
A No, sir.
MR. ELY: Now, I offer the five articles that
this witness has just stated were in People's Exhibit
3 for Identification, as People's Exhibit 4 for
Identification.
THE COURT: They may be so marked. BY MR. ELY:
Q Did you see where this young man, Erb, got People's
Exhibit 3 for Identification?
A (No answer.)
Q Do you understand the question, Tarpey?
A Yes, sir.
Q You say that Erb was the boy who handed you People's
Exibit 3 for Identification?
A Yes, sir.
Q Now, the question is, did you see where Erb got Peo- ple's Exhinit 3 for Identification, which he handed to you?
A No, sir.
Q You did not?
A No, sir.
Q And you had been there about five minutes before you got this People's Exhibit 3 for Identification?
A Yes, sir.
Q And you had been in the defendant's room; hadn't you?
A Yes, sir.
Q And had you seen the defendant there?
A Yes, sir.
Q Now, you took--or, after you received People's Exhibit
3 for Identification, did you see the defendant again?
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A Yes, sir.
Q And did you show the defendant People's Exhibit 3 for
Identification?
A Yes, sir.
Q And did you ask the defendant anything about the owner- ship of People's Exhibit 3 for Identification?
A Yes, sir.
Q What did you ask the defendant about People's Exhibit
3 for Identification?
A I asked him, "Is this your pistol?" and he said, "Yes."
Q And what else?
A I asked him, "Is this the pistol that you shot him with?" and he said, "Yes."
MR. ELY: Now, sir, if your Honor please, I
offer People's Exhihit 3 for Identification in evi- dence, and also People's Exhibit 4 in evidence. THE COURT: I will receive them.
(They are marked, respectively, People's Ex- hibits 3 and 4, in evidence.)
BY MR. ELY:
Q Now, Tarpey, did you see Mrs. Calandra on that even- ing?
A Yes, sir.
Q And did you ask Mrs Calandra any question? Yes or no.
A Yes, sir.
Q And when you asked Mrs Calandra a question, what, if anything, did she do?
A She led the way into the room for me.
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Q And who did she lead you up to?
A She pointed into the room. to her husband.
Q She pointed at her husband, did she, after you had asked her some question?
A Yes, sir.
Q Now, do you know this lady, standing there (indicating)?
A Yes, sir.
Q Is that the ledy that you refer to?
A Yes, sir.
Q And did you say anything to the defendant when you went to where he was?
A Yes, sir.
Q Now, did you ask the defendant who the injured man in the hallway was?
A Yes, sir.
Q What did the defendant say?
A He said, "He is my brother-in-law."
Q Well, now, you may give the whole conversation that
you had with the defedant, do you understand? That is, this man here (indicating the defendant). Do you understand?
A Yes, sir.
Q Now, you may give the whole conversation?
A When
I entered the kitchen, Mrs Calandra said, pointing to her husband--
MR. LeBARBIER: Now, never mind what she said. MR. ELY: Now, I do call for that. It was
said in the presence of the defendant; THE COURT: Proceed.
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A He said, "I'm here, Officer." BY MR. ELY:
Q Now, what did Mrs Calandra say in the presence of the defendant?
A "What for you kill my brother? What for
you shoot my brother?" In broken English.
Q And what did the defentdant say?
A He says, "I'm here, Officer. I won't run away. I shot him. I shot him in
self-defence. This man is my brother-in-law, and he came to my home, and was drunk, and started a fight with me."
Q What?
A "Started to quarrel with me--" I correct
myself-- "Started to quarrel with me, and I seen him coming
for me, and what chance would a small man like me have with a big man like him? So I reached for the pistol, and shot him."
Q How many times did he say he shot him?
A I asked
him how many times he shot him, and he said, :Two or three times."
Q Yes; now, you testified on this subject, on the 6th of
August, 1906, didn't you?
A Yes, sir.
Q Before the Coroner, at the Coroner's imquest?
A Yes, sir.
Q And do you recollect all the testimony you gave then?
A I do.
Q Well, give it all just as you gave it then, now?
A Well, will I have to go over all that again?
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Q Well, I tell you to give it again. You say you do.
A When I entered the room, he said, "That's all right, Offi- cer. I won't run away. I'm here. I shot him. I shot him
in self-defence."
I asked him why he shot him, and he said, "This man is
my brother-in-law, and is in the habit of coming to my house drunk, and he started to quarrel with me."
Q Now, did you say that at the Coronor's inquest, that
he started to quarrel wiht th him?
A Well, he started to fight or quarrel, either one or the other. "And a small man like
me, what chance would a small man like me have with a big man like him?"
Q You said that; did you?
A He said that, sir.
Q You gave that testimony at the Coroner's inquest; did you?
A Well, I believe I did, sir.
Q Do you swear that you did?
A Well, to the best of my ability, I did.
Q Well, you mean to the best of your recollection you did?
A Yes, sir.
Q And your recollection is not any refersher, to-day, than it was on the 6th of August?
A No; I guess not.
Q It is?
A Yes, sir.
Q Well, go on.
A "So I seen he was coming for me,
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and I reached for the revolver, and shot him."
Q Now, for the purpose of refreshing your memory, on the
6th of August, did you say, " I seen him coming for me, and I put my hand on the bureau, and got the revolver, and fired."?
A Well, them may not be the same words.
Q Now, will you answer that question?
MR. LeBARBIER: I think, your Honor--permit me to say in the first place, your Honor--he is appar- ently endeavoring to impeach his own witness. THE COURT: No, no. I will overrule the objec- tion.
MR. LeBARBIER: No; I have no objection. MR. ELY: Then why do we waste time in a speech?
THE COURT: Then why rise to address the Court, if you have no objection to make?
MR. LeBARBIER: Well, I suggest that the whole testimony be read, the whole answer; and not put a colored interpretation on the answer, giving only a part of it; and I now object to the interpolating
of this answer, apparently taken before the Coroner's jury, and I request that the whole answer be read. MR. ELY: I am perfectly willing.
THE COURT: Proceed, please.
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BY MR. ELY:
Q Was this question asked you: "Q Officer, tell the
jury what you know about this case?" And did you give this reply: "A I was on post on the evening of July 20th, and,
along about 7:55 P.M., on the corner of Second avenue-- 7:50
P.M.--a great crowd of citizens ran toward me. They said
that there was a man being murdered, at 309 East 90th street." MR. ELY: And, of course, your Honor, That is
incompetent, and it is only brought now by me for the reason that counsel has asked that the whole answer be read.
"I hurried there, and went upstairs, and found, on the fourth floor, at the head of the stairs, an injured man, lying prostrate across the hall. I
asked who done the shooting.
A lady, Mrs Calandra, she pointed, in Italian, this way (indicating), in- dicating, 'My husband.' I asked where he was, and she led the way into the kitchen, and from the kit-
chen to the bedrbom, where Calendra was sitting on a bed, in his underclothes. He said, 'Officer,' he
said, 'I done it. I'm not going to run away. I
shot him in self-defence.' I got the gun. and asked him, 'Is this the gun you shot him with?' And he said, 'Yes.' I asked him how many shots he fired,
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and he said, 'Two or three.'"
MR. ELY: Now, I omit three lines, which have nothing to do with my question as regards the con- versation with the deceased.
MR. LeBARBIER: No, sir.
MR. ELY: Excuse me. If your Honor please, I
say--
MR. LeBARBIER: Your Honor has ordered the reading of the answer.
THE COURT: Well, let us proceed in an orderly way.
MR. LeBARBIER: I suggest that your Honor has directed the reading of the answer.
THE COURT: This was all done by consent; not by my direction.
MR. ELY: I SAY, I omit three lines that were not responsive to the question that I asked. THE COURT: Now I will hear your motion, MR. ELY: And he can offer it afterwards.
MR. LeBARBIER: No, sir. We submit, now, under every authority, that this answer shall be read as a whole. We demand that the answer be fully read. MR. ELY: Well, I will read it.
BY MR ELY:
Q (Question continued:) " I borught it back into
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the hall, and asked the injured man 'Is this the man that
shot you?' He groaned, in an audible voice, and he said, 'No. I want a doctor.' I brought the prisoner back to his room,
again, and meanwhile an ambulance was being rung up, and the doctor came, and said a hurried examination at the hospital
was necessary--Dr. Cocke.
"I brought the other man back, and he give me his name
and his pedigree, and he gave me the injured man's name and pedigree, and plave of residence. He said he worked for the defendant. I asked him why he shot him, and he said he
came into his room, and was in the habit of coming into his house, drunk--intoxicated-- and causing great trouble between him and his wife; and he said to the injured man, 'Now,' he says, 'Josie, go home, and we will talk this matter over, to- morrow, down at the store.' He says he went as far as the kitchen door, in the act of going home, and turned back, in
a threatening manner towards him, and came in, and forced him into his bedroom, and he says, 'I seen he was coming for me, and I put my hand to the bureau, and got the revolver, and
fired.' I asked how many shots was fired, and he said, 'Two or three shots.'" Now, did you answer the question that way?
A Yes, sir.
Q And that's all you know about the case; is it?
A Yes, sir.
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CROSS ECAMINATION BY MR. LeBARBIER:
Q Don't you know a little more about the case, Officer? MR. ELY: I object. He may ask a question.
THE COURT: He may answer the question.
A Yes, sir.
BY MR. LeBARBIER:
Q Do you remember going into the defendant's apartment, that night?
A Yes, sir.
Q Diid you observe any blood on the floor?
A Yes, sir.
Q Wherabouts?
A At the north end of the floor, under the window.
Q Near the window?
A Yes.
MR. ELY: Under the window, he said. BY MR. ELY:
Q Didn't you?
A Yes, sir. BY ME. LeBARBIER:
Q Did you observe any other place where there was any blood, like?
A (No answer.)
Q In the kitchen this is, isn't it?
A Yes, sir.
Q Was there blood anywhere else in the kitchen, Tarpey?
A No, sir; that's all I seen.
Q Did you observe any window in the apartment there, in the kitchen?
A Yes, sir.
Q Was that window in good order?
A No, sir.
Q What was the condition of the window?
A Broken;
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22
broken glass.
Q Which window was broken?
A The one on the north end of the room.
Q How much of it was broken?
A Well, there was a large piece broken, a very large piece.
Q Was there a large aperture in the place there where the glass should be?
A Yes, sir.
Q That was out?
A Out.
Q Were the pieces of glass on the floor, or had they fallen outside, if any?
A There was some on the floor.
Q Not the whole of it, though?
MR. ELY: I object. How can he tell whether it was the whole, or not?
THE COURT: He may answer, if he knows.
A No, sir; I don't know whether it was the whole, or not. BY MR. LeBARBIER:
Q Did you pick up any of the pieces of glass?
A No, sir.
Q Do you know whether anybody did?
A No, sir.
Q Do you know whether any of those pieces of glass are in the possession of the District Attorney?
A No, sir.
Q Do you know whether or not the sash was broken?
A I don't know, sir.
Q After you went into the premises 309 East 90th street,
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23
and proceeded upstairs, where you saw Ciofolo, and went inside into the defendant's apartment, where, at that time, was the defendant standing?
MR. ELY: I object to that question. He as-
sumes that he was standing. We don't know where he was, or what he was doing.
BY THE COURT:
Q Well, where was the defendant? BY MR. LeBARBIER:
Q Where was the defendant?
A He wasn't standing, sir.
Q Where was he?
A He was sitting; sitting on the bed.
Q What was the condition of his dress?
A He was un- dressed.
Q Well, how much dressed was he?
A He had his under- clothes on, shirt and drawers.
Q He had what, you say?
A Undershirt and drawers.
Q Did he have any socks on?
A That I couldn't tell.
I couldn't answer to that.
Q You remember testifying at the Coroner's inquest, do you not, Officer Tarpey?
A Yes, sir.
Q Do you remember this question and answer being put to you: "
Q He had no stocking on; had he?
A No"? Is that correct?
A Well, I couldn't swear whether he had storkings on or not.
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24
Q Well, I am not seeking to mix you up in any way. MR. ELY: I object to any conversation between counsel and the witness.
THE COURT: Put the question, please. BY MR. LeBARBIER:
Q I call your attention to this question and answer:
"Q He had no stocking on; had he?
A No." Do you recall that answer to that question?
A I think so; yes.
Q Did you observe the arms of the defendant?
A No, sir.
Q Did you observe his arm?
A No, sir.
Q Do you remember this question being put to you at
the Coroner's inquest: "Q Did you see his arm?
A Yes"?
A If I did, I seen the arm afterwards.
Q Was this testimony correct, at the Coroner's in- quest, that you gave--
MR. ELY: That is not the proper question, if your Honor please, and I object to it.
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25
THE COURT: I will sustain the objection. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q Did you testify as follows, at the coroner's inquest: "Q Did you see his arm?
A Yes."?
MR. ELY: I object. He has already said
he gave, practically, that testimony, that he didn't say that he saw his arm, at a certain time; that's all. There isno contradiction there, as far as I have been able to see.
THE COURT: He may answer the question.
A I seen the arm afverwards. I didn't see it then, in the room.
BY MR. LE BARBIER:
Q In the room, of course. You saw his arm in the room?
A No, sir, not then.
THE COURT: Well, are you asking as to the fact, or the former testimony? I think it is a little
in doubt. I cannot understand it, and I do not believe the witness does. Put your question so that it will be understood by him, please.
BY MR. LE BARBIER:
Q You were a witness at the coroner's inquest in this case, were you not?
A Yes, sir.
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26
Q Did you testify as follows, in answer to this question-- THE COURT: Now, let me interrupt. Unless it
tends to contradict, it will not be proper.
MR. LE BARBIER: I know that, your Honor. THE COURT: Very good. I only call your attention to it.
BY MR. LE BARBIER:
Q "Q When you went inside, after this talk with the
wife, did you go into the bed room of the defendant?
A Yes, sir."?
A Yes, sir.
MR. ELY: Well, he has said that before.
THE COURT: Go on, please, Mr. Le Barbier. I take it this is preliminary.
BY MR. LE BARBIER:
Q "Q He had no stocking on; had he?
A No."? MR. ELY: And he admitted that already, that he said that.
BY MR. LE BARBIER:
Q Now, again: "Q Simply had his drawers?
A And under- shirt."?
MR. ELY: Now, I object to this. It isconsuming time unnecessarily. We have had it malredy. He is reading form the minutes, and asking him if he made these answers.
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27
THE COURT: I thought he was merely reading from the minutes, without putting any question.
BY MR. LE BARBIER:
Q "Q Was he in bed?
A Sitting on the bed".?
THE COURT: What are you asking, Mr. Le Barbier? MR. LE BARBIER: I asked him if he was a witness at the coroner's inquest, and if he didn't make his answers to the following questions.
THE COURT: Then I will sustain the onjection
of Mr. Ely, because they do not tend to contradict. MR. LE BARBIER: And that is just what theydo. This officer tesified that he didn't see his
arm.
THE COURT: Well, I have heard several ques- tions read by you from the minutes of the coroner, which seem quite in line, to my mine, with his testi- mony, to-day. I did not rule, because I thought you were leading up to so supposed contradiction. I
will sustain the obhection to such questions ashave thus far been read.
MR. LE BARBIER: And I wish to contradict him. THE COURT: Then proceed to the contradiction. MR. ELY: Except as to the witness's being
asked whether he testified before the Coroner, "He
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28
had no stockings on, had he?
A No, sir." That was in before, your Honor.
THE COURT: Yes. And I have not ruled on that, therefore.
MR. ELY: And all the others are stricken out? THE COURT: Yes.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Isn't it a fact that, when you were in the bed room
of the defendant, you noticed the condition of his arm?
A I don't remember anything on the arm, in the bed room.
Q Now, upon that particular point, did you not, at the Coroner's inquest, answer the question as follows: "Did you see his arm?
A Yes, sir."?
MR. ELY: Now, I object to that.
THE COURT: He may answer that.
A I understood it, at the Coroner's inquest.
MR. LE BARBIER: Never mind what you under- stood.
BY THE COURT:
Q Did you so testify, is the question?
A I did tes- tify it.
BY MR. LE BARBIER:
Q Did you observe the condition of his wrist, if any?
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29
A No, sir, not then.
Q Isn't it a fact that, while in the bed room of the defendant, at this particular time, you did observe the condition of his wrist?
A No, sir.
Q Did you not, as a witness at the Coroner's inquest, answer this question, as follows: "Q Was his wrist red?
A Yes, sir."? Now yes or no? Did you?
A No, I don't remember answering it that way.
Q Did you observe the skin in and about and on the wrist?
A Not then, sir.
Q Isn't it a fact that, while you were in the bed room of the defendant--
THE COURT: Mr. Le Barbier, the record
doesn't show, I am quite sure, whether your question is, "Did you so testify?" Or whether you are
asking a question as to fact.
MR. LE BARBIER: I first put the question as
a fact, and asked him if he had not so tesified; and I wanted to appear clearly on the record. BY MR. LE BARBIER:
Q And that, at that time, in the bed room with him,
you did observe the condition of the wrist, and stated the condition of it?
A No, sir; not at that time.
Q Now, as a witness before the Coroner, did you not tes-
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30
tify as follows, in answer to this question: "Q Was it bleeding?
A The skin was off. It looked red, raw,
the skin being off".? Did you or not testify so?
A I didn't understand it that way.
Q Did you or not so testify?
A Well I did, if it is
there; I did; because I seen it that way afterwards, but not at that particular time.
Q Now, wait. We will get at that.
MR. LE BARNIER: Now, I move to strike out
the words that he saw it afterwards, on the ground that it isn't reponsive.
MR. ELY: I object to that. THE COURT: Strike it out. BY MR. LE BARBIER:
Q Did you at any time have a conversation with the defendant in regard to his wrist?
A Yes, sir.
Q When was that?
A Two days afterwards.
Q What was said?
A He said, "You can see where he thought to bite me."
Q "thought to bite me," or, "did bite me"?
A Or, " did bite me."
Q Did you see the teeth marks on the wrist?
A No, sir; I seen no teeth marks.
Q, Well did you see any marks on the wrist?
A Yes, sir.
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31
Q Did it appear to you like a bite? MR. ELY: I object.
THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q What did it appear to you like?
MR. ELY: I object. Let him describe it.
He is making the witness his own witness as to this.
THE COURT: Sustained. BY THE COURT:
Q What did you see about the wrist?
A I seen it inflamed and red.
Q Bleeding?
A No, sir.
Q Was the skin broken?
A It was broken a lit- tle.
Q Wasit bruised and black?
A No, sir; it was red;
reddish.
BY MR. LE BARBIER:
Q Did you testify, at the Coroner's inquest on the subject, as follows: "Q But, assuming that it was teeth markes, was it a good, full bite?"
MR. ELY: I object.
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32
THE COURT: Susained.
Mr. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Now, Officer Tarpey, I will ask you this ques-
tion: Youhavestated here, to-day, that the wife stated to you, in broken English, in the presence of the defend- ant, " What for you shoot my brother?"
MR. ELY: I object. If yur Honor please,
that wasn't said to the witness. It was said in
the presence of the witness, by the woman, to the defendant.
THE COURT: Well, is the question complete? I did not so understand.
(The question is repeated by the stenographer). THE COURT: Yes. Strike it out. Ask your question without the recital of the facts preceding it.
BY MR. LE BARBIER:
Q Did the wife of the defendant say to you, in the pres-
ence of the defendant, as you have said, "What for you shoot my brother?" in broken English?
MR. ELY: Objected to. BY MR. LE BARBIER:
Q Well, did she say that to the defendant, in your pres-
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33
ence?
A Yes, sir.
Q Did you make any such statement as that, at the
Coroner's inquest?
A Yes, sir.
Q Isn't it a fact that, at the Coroner's inquest you
sid this: "I asked who done the shooting.
A lady, Mrs. Calandra, she pointed, in Italian, this way (Indicating), 'my husband!"?
A Yes, sir.
Q Did you talk with Mrs. Calandra?
A Yes, sir. MR. ELY: I object.
A Did you say Mrs. Calandra? BY MR. LE BARBIER:
Q Yes?
A No, sir; with Mr. Calandra.
Q At any time or anywhere have youmtalked ever with
Mrs.Calandra?
MR. ELY: I object to that, as too indefinite. THE COURT: He may answer.
BY MR. LE BARBIER:
Q That is, the wife of the defendant?
THE COURT: Now, get the question in your head right, Officer Tarpey.
BY THE COURT:
Q Did you ever talk to the defendant' swife, at any time or place?
A Yes, sir; afterwards.
Q Where and when?
A Very little, though.
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34
Q Where and when?
A I asked her--
Q No. When and where?
A In their own rooms. THE COURT: Now, we will stop here. Gentlemen, do not talk about this case; nor per- mit any one to talk with you about it; nor form or express any opinion thereon, until it is finally submitted to you.
Captain, it has been reported to me that various witnesses have communicated with the defendant, and that packages have been handed to him with the conent of your officers. Now, that is entirely improper. Immediately at the close of the court, it is
your duty, as you know, to take the defendant to the pen, unless, by permission, he is permitted to re-
main here, for the purpose of conferring with counsel. But there must be no conference whatever with other people, except by my permission.
MR. ELY: And will your Honor direct the wit-
ness, as he is on the stand, not to talk with anybody about the case?
MR. LE BARBIER: Well, I submit that it is quite useless, any way. It is an insinuation. We are cer- tainly not going to talk with a witness, and it is
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35
a useless suggestion for the District Attorney. THE COURT: The matter is disposed of. Be- cess until two o'clock.
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36
AFTER RECESS.
MICHAEL TARPEY, his cross examination being continued, testified as follows:
CROSS EXAMINATION CONTINUED BY MR. LE BARBIER:
Q Now, what is your recollection, Officer Tarpey, as
to the two or three shots that you say were mentioned? Was it two shots or three shots?
A He said two or three.
Q Well did he say two or three?
A No, sir; he said it.
Q I say, did the defendant say two or three?
A Yes; two or three.
Q Or is it because you broke the revolver, at the Station House, and found that there were two cartridges loaded, left in the pistol?
MR. ELY: Objected to on the ground that it is already answered definitely.
THE COURT: Have you finished your question, Mr. Le Barbier?
MR. LE BARBIER: Yes, sir.
THE COURT: I will sustain the objection. It seems to me that it is answered.
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37
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Did you look at theconents of the revolver, be- fore you broke it, at the Station House?
A No, sir.
Q Did you know -- question withdrawn. When you say
that the defendant said to you that the deceasedmforced him into his bed room, what else, if anything, was said, at that time?
MR. ELY: I object. That is not the testimony of this witness, as far as I recollect.
THE CORUT: He may answer it.
MR. ELY: I object, on the ground that it
is injecting something into the testimony of the witness that he has not testified to.
THE COURT: He may answer.
MR: LE BARBIER: If your Honor wants to hear me on that point, I will point to the very words.
THE COURT: I have allowed it.
(The question is repeated by the stenograph- er.)
A He said that, "he being a much bigger man than me, what chance had I with him?"
Q Did he say that the deceased forced him into his
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38
bed room?
A Yes, sir.
Q Did you observe the condition of the underclothes, that is, the shirt and drawers of the defendant?
A Yes, sir.
Q What condition were they in?
A They seemed to be in good condition.
Q Well I know. Dry or wet?
A Dry.
Q While you were having this talk with the defendant, did youmobserve his physical condition?
A Yes, sir.
Q Was he or wasn't he excited?
MR. ELY: I object to that. That is calling
for a conclusion. He can describe what the defendant did.
THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR LE BARBIER:
Q Please describe his condition?
A He seemed to be calm.
Q Calm?
A Cool.
Q Cool?
A Yes, sir.
Q Cold?
A Cool.
Q When you say, "Mrs. Calandra pointed (indicating); my husband,'" as you say, did you observe her physical condition?
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39
A Yes, sir.
Q Calm?
A No; she was excited.
Q In what way did it manifest itself?
A Such as ring-
ing her hands, and accents in Italian, which indicated that she was very much excited (Illustrating).
Q And did she stop all this, when she spokt to you? MR. ELY: I object to the question in that
form.
THE COURT: He may answer it.
A Oh, no; she continued it afterwards. BY MR. LE BARBIER:
Q Now, while she was speaking to you, if she did,
did she stop moving her hands and her body?
A She did, for a moment.
Q And stood upright?
A Yes, sir.
Q Quiet?
A No, sir, uneasy; walking the floor.
Q She was walking the floor?
A Yes, sir.
Q Did you go outside into the hallway, with the de- fendant?
A Yes.
Q Did you go with him towards the wounded man?
A Yes, sir.
Q Did you have any conversation there, in the presence of the defendant?
A Yes, sir.
Q Did you talk to the wounded man?
A Yes, sir.
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40
Q What, if anything, was said?
A I askedthe wounded man, "Is this the man that shot you?" He was groaning, yet he answered in a troubled voice, "No; I want a doc- tor."
MR. LE BARBIER: Now, I move to strike that out the words "he was groaning".
MR. ELY: I object. He called out the whole of it.
THE COURT: Wasn't that responsive to your in- quity?
MR. LE BARBIER: I think not. I asked about a conversation.
THE COURT: Strike out, " he was groaning", then.
BY MR. LE BARBIER:
Q Did the wounded man say thatnmore than once?
A Yes, sir.
Q How many times?
A Twice.
Q Looking at the defendant?
A He looked at him once, sir.
Q Andsaid,no?
A And said, no.
Q And was that the first no?
A No; he answered no
again, as he turned on his left side, and looked the other way.
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41
Q Did you take the defendant to the hospital, at any time?
A Yes, sir.
Q Did you take him in the presence of the wounded man?
A Yes, sir.
Q Did you have any conversation there? MR. ELY: Yes, or no?
A No.
BY MR. LE BARBIER:
Q When was this?
A It wastwo days afterwards; the morning of the 22nd.
Q What did you take him to the hospital for? MR. ELY: I object.
THE COURT: He may answer that. BY THE COURT:
Q Why did you take him to the hospital?
A To be
indentified by the priener -- by the decased -- by the injured man -- by the man that's dead now.
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42
BY MR. LeBARBIER:
Q Well, when you arrived at the hospital, did you have the defendant with you?
A Yes, sir.
Q Did you go into the room of the injured man?
A Yes, sir.
Q Where was he, in or out of bed?
A He was in bed.
Q Did you go up to his bed?
A Yes, sir.
Q Did you take the defendant up to the bed with you?
A Yes, sir.
Q How near the bed did you go?
A Why, we were stand-
ing right beside the bed, perhaps about a foot away from the side of the bed.
Q Were you facing the injured man?
A Yes, sir.
Q Was the defendatn facing the injured man?
A I
think--
Q (Question repeated.)
A No.
Q What was he doing?
A He was lying on his back, looking upwards.
Q Was the defedant facing the injured man, I mena?
A Yes, sir; facing the injured man.
Q Now in that position, and at that time, and going there for a purpose, did you say anything?
A No, sir.
Q Did anybody say anything, in the presence and hearing of the wounded man and of the defendant?
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43
MR. ELY: Yes or no.
A Yes, sir.
BY MR. LeBARBIER:
Q Who?
A Datectiive Stein.
Q What was said?
MR. ELY: I object, as incompetent, immaterial and irrelevant.
THE COURT: Sustained.
MR. LeBARBIER: Exception. BY MR. LeBARBIER:
Q Don't you answer this question. At that time and
place ant at that particular moment, did the deceased say-- MR. ELY: No. I object to his asking what the
deceased said, becouse he knows perfectly well that it is incompetent to incorporate that in any ques-
tion, after your rulling, an momant ago.
MR. LeBARBIER: I have yet to learn that that is incompetent, your Honor.
MR. ELY: Then you have a good deal to learn. THE COURT: I will sustain the objecttion.
MR. LeBARBIER: Exception. BY MR. LeBARBIER:
Q Now, don't answer this, Officer. At that moment, and
at that particular time and at that place, did you hear--don't
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44
answer this--the defendant say anything? MR.ELY: Answer that yes or no. I don't object to that.
THE COURT: Yes or no.
A No.
BY MR. LeBARBIER:
Q Don't answer this. At that time and place and particu-
lar moment, did you hear anybody say anything in the presence of the deceased and of the defendant?
MR. ELY: I don't object to that. Yes or no to that.
A Yes.
BY MR. LeBARBIER:
Q Don't answer this, until I get a rulling. Please state what was said?
MR. ELY: I object.
THE COURT: Have you gone into this at all, Mr
District Attorney? MR. ELY: I have not. THE COURT: sustained.
MR. LeBARBIER: Exception. BY MR. LeBARBIER:
Q How long did you remain in the hallway, at the top
of the stairs, with the defendant and the wounded man?
A Just
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45
about one minute.
Q Did you go back into the room?
A Yes; afterwards.
Q Did the defendant at any time change his underclothing, to accompany you?
A No, sir.
Q Do you know that of your own knowledge?
A Yes, sir.
Q Did you observe the condition of the room, the kitchen?
A Yes, sir.
Q Other than the broken window?
A Yes, sir.
Q Did you observe the position of the chairs?
A No, sir.
Q That table?
A Yes, sir.
Q Did you observe the position of the sofa?
A No, sir.
Q Do you know how many chairs were in the kitchen?
A No, sir.
Q Do you know how many chairs were in the bedroom?
A No, sir.
Q Do you know where the sofa was?
A No, sir; not exactly.
Q Do you know where the table was?
A Yes, sir.
Q Was it in the bedroom or the living room?
A It is in the kitchen.
Q Well, that's the living room, the kitchen. MR. ELY: Well, I object. How does he know where they lived. He says, the kitchen.
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46
THE COURT: It is a statement of Mr LeBarbier's, which is out of order; and, if it is objected to ,
I must sustain the objection.
MR. LeBARBIER: Well, I am putting it in the way of a question.
THE COURT: Then do so. BY MR. LeBARBIER:
Q Well, in all my questions, when I spoke of the kitchen,
I meant the living room. Have you understood it that way? MR. ELY: Objected to.
THE COURT: He may answer.
A Yes, sir.
BY MR. LeBARBIER:
Q When you went into the bedroom, did you observe where tht position of the bed was?
A Yes, sir.
Q Where?
A Well, the head of the bed lay towards the south, and the feet towards the north.
Q Well, now, Officer, isn't it a back--please take
People's Exhibit 2. Now, looking at People's Exhibit 2,
will you kindly indicate on that diagram where the bed was? Do you understand the meaning of the word "diagram", the learned Assistant District Attorney suggests?
A I under-
stand the meaning of the word "diagam" very well; but some- times they are not very perfect, you know.
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47
BY MR. ELY:
Q Do you understand that diagram? That is the question,
A Yes, sir.
BY MR. LeBARBIER:
Q Now, looking at People's Exhibit 2, will you kindly
state where, in the bedroom, was the bed?
A As you enter the door, from the kitchen, here (indicating).
Q Yes.
A As you enter the bedroom from the kitchen,
you go south, and, as you do, the bed lies right there, with the head of the bed there, and the foot there (indicating)>
Q Well, may I ask if you will mark on that diagram
where the head of the bed was, when you entered? Just a little cross?
A There (indicating).
Q Now. will you kindly state, Officer, whether you know whether there was any other bed in the room?
A Yes, sir. Q
A chair?
A I didn't take notice of a chair.
Q
A bureau?
A A bureau.
Q What kind of a bureau was it? I mean generally, as to size, etc.?
A It was a plain, respectable piece of furni- ture.
Q Will you kindly indicate on that diagram, People's Ex- hibit 2, where the bureau was, at the foot of the bed?
A I've marked the foot of the bed, where that "O" is.
Q And that's where the bureauwas?
A Well, the bureau
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48
is about a foot or a foot and a half from the foot of the bed.
Q Then you have marked the foot of the bed "O"?
A Yes; that's as far as my recollection goes.
Q Between the "O" and the partition was the bureau?
A Yes.
Q At the time you entered the bedroom, did you observe whether or not the window, sash window, between the living room and the bedroom was ppen or shut?
A I didn't notice, sir.
Q Did younobserve whether or not there was any glass window there, at all?
A No, sir.
REDIRECT EXAMINATION BY MR. ELY:
Q Now, Officer Tarpey, you were just asked by counsel for the defendant, a moment ago, if you noticed the condition of the kitchen, when you entered it, and you replied that
you did?
A Yes, sir.
Q Now, were any of the articles of furniture overturned or upset?
A I didn't see any, sir.
Q And were all the articles of furniture straight, or
didn't you notice them?
A I noticed the table in particular.
Q Now, for the purpose of refreshing your memory, were you asked: "Q Was it up straight; did you notice?
A Yes;
I noticed.
A How was it?
A It was up straight"?
A Yes, sir.
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49
Q And that the table was up straight?
A Yes, sir.
Q And it wasn't overturned?
A No, sir.
Q And did you notice any articles in the kitchen of furniture, or otherwise, which were upset or overturned?
A No, sir.
Q Now, Tarpey, you have been asked a good deal about the testimony that you gave, or that was read to you by caunsel for the defendant, which he said was taken at the corner's corut, notably about the wrist?
A Yes, Sir.
Q Of the defedant?
A Yes, sir.
Q Now, on the night of the 20th of July, 1906, as a mat- ter of fact, did you notice the wrist of the defendant?
A No, sir.
Q On the night of the 20th of JUly, 1906, did the defend- ant at any time say anything to you about his wrist?
A No, sir.
Q On the same night did the defendant--that is, the
night of July 20th, 1906-- at any time, say anything to you about a bite, or an attempt to bite him?
A No, sir.
Q Did the defendant at any time say anything to you
to the effect that the deceased, Joseph Ciofolo, bit his wrist, or attempt to bite ghis wrist?
A No, sir.
Q And did the defendant say anything else to you in re- gard to the shoting than that he did it in self-defence?
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50
A That's all, sir.
Q Now, you were asked, a moment ago, by counsel, whether or not your recollection as to the number of times that the defendant shot depended upon the fact that you found that three shots had been fired from the revolver, or whether or not the defendant testified to that effect himself?
A He testified--
Q Now, wait, please. I am simply calling your attention
to the question of the defendant's counsel?
A (No answer.)
Q Now, on the 6th of August, 1906, at page 7, did you
say before the Coroner: "I asked how many shots was fired, and he (referring to the defendant) said, Two or three, "?
A Yes; that's perfect.
Q Now, referring again to the alleged injury, or to
the defendant's arm, when, if ever, did the defendant ever speak to you about his arm, or his wrist, rather? It is his wrist, rather than his arm.
A Two days after.
Q And where was the defendant when he spoke to you about the wrist?
A He was on a street car, with--
Q Never mind. I didn't ask you where you were going. I asked you where it was?
A On a street car.
Q And who, if anybody, was present, other than you and the defendant?
A No, one.
Q And, at the time the defendant spoke to you about his
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arm, or his wrist, rather, did he show you his wrist?
A Yes, sir.
Q And that was the first time that the defendant had spoken to you about his wrist?
A Yes, sir.
Q Were you present in court when the defendant was taken to court, the first time?
A Yes, sir.
Q And were you in charge of the defendant?
A Yes,sir.
Q What day was it that the defendant was taken to court? the first time?
A It was on Saturday, the morning of the 21st of July, 1906.
Q Yes. And it was, as you said, on Sunday, was it, that the defendant, for the first time, referred to his ar- rest in your presence?
A Yes, sir.
Q And you had been interrogated as to whether the de- fendant--by counsel for the defendant--as to whether or not the defendant said anything to you about his wrist, not his
arm, on the night of the 20th of July, 1906, when you made the arrest. You have been interrogated, you remember, about that?
A Yes, sir.
Q And what was the fact of that? Repeat it again?
A I said that he made no mention to me of it, in the room.
Q And your testimony before the corner referred to
the time that you have just mentioned, two days after the oc- currence, on a street car?
A Yes, sir.
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Q Well, your testimony as to the wrist of the defendant?
A Yes, sir.
Q Which you gave before the Coroner, on or about the 6th of August, 1906, related to the time you have just men- ticned, namely, two after the 20th of July, 1906; is
that right?
A Yes, sir.
Q Now, Tarpey, you have got a cross and an "O"--you have marked--I will change the form of the question. You
have marked a cross and an "O" in that room, on People's Ex- hibit 2, which is put down on such exhibit as bedroom; haven't you?
A Yes, sir.
Q And this cross is--just take that. That's a ruler;
do you see?
A Yes.
Q Now take his diagram in your hand, and measure the distance of the cross from this black bar, which rapresents the wall, in inches. How far have you got the cross from the wall, in inches?
A (No answer.)
Q Well, do you understand what I say?
A Yes, sir.
Q then why don't you put down the ruler and measure it?
A Well, from what I understand--
Q No. Do you see that mark there (indicating)?
A That's a cross mark.
Q And who put that on?
A I did.
Q And this black ink mark here, what is it?
A The
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A The partition.
Q I an asking you how far that cross is from this parti-
tion, and I've given you a ruler, and ask you to measure it?
A Well, I would like to understand--
Q No. I don't want any explanation. I want to know how
far that cross is from the wall?
A AbOut an inch and a half.
Q Well that 2, there; do you see that.
Q And here is a mark, even with the cross, how far does it make the cross from the partition?
A About two foot, I think.
Q Then the head of the bed, according to the way you have got it marked, is four feet away from the wall? Was
the head of the bed four feet away from the partition?
A No, sir.
Q Then what you have done here on this diagram may be right, and it may be wrong. Now, how far was the partition from the head of the bed?
A It was quite near the partition.
Q The head of the bed was up against the partition, wasn't it?
A Yes; that's proper.
Q Now, when you marked this cross here, that was incor- rect; was't it?
A Yes, sir.
Q And it should have been up here against the parti- tion (indicating)?
A Yes, sir.
Q That is, the head of the bed was up against the
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southerly partition of the bedroom?
A Yes, sir.
Q And the bed--about how near was the bed, a respectable bed, I suppose, like the bureau?
A Well, an ordinary
sized bed. Well, I would call it a three-quarters bed.
Q Well, then the length? That's the width?
A Well, about six feet and a half.
Q And is that yourexpreience with beds?
A Yes, sir.
Q And then the bed would extend, we will say, about six feet, to six feet and a half, to the southerly partition in the room?
A Yes, sir.
Q And then your testimony as to the bureau is that that respectable piece of furniture was about a foot to the north of the six foot, three-quarter bed?
A Yes, sir.
RECROSS EXAMINATION BY MR. LeBARBIER:
Q Was there any light burning in the bedroom?
A No, sir.
Q When you went in there with the defendant?
A No, sir.
Q Where was the light? In the living room? MR. ELY: Wait a moment. I object. It is
not proper recross-examination. I haven't asked anything about the light in the bedroom, and this
was proper cross examination in the main cross-exam-
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BY MR. LeBARBIER:
Q Did you see any light, when you went in there? MR. ELY: Objected to.
A No, sir.
BY MR. LeBARBIER:
Q I mean in the premises of the defendant?
A Yes, sir.
Q Then there was a light?
A Yes, Sir.
Q Was the light in the bedroom?
A No, sir.
Q Where was the light?
A In the kitchen.
Q This bureau that you speak of was up against the par- tition, or inside the bedroom?
MR. ELY: Objected to. THE CORUT: Sustained.
MR. LeBARBIER: Exception.
WILLIAM E. ERB, a witness called on behalf of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Now, Mr Erb, do you know this man standing up here
(indicating Officer Tarpey) ?
A I seen him--
Q No. Did you ever see him before?
A Yes, sir.
Q And did you see him on the night of the 20th of July,
1906?
A Yes, sir.
Q And whereaboute did you see this officer-- he is an of- ficer of the Police Force: isn't he?
A Yes, sir.
Q And when you saw him he was in uniform?
A Yes, sir.
Q Now where was it you saw this officer?
A In 309 East
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90th Street.
Q And do you know what his name is?
A No, sir:
Q Don't you know now?
A No,,sir.
MR. ELY: Come up a little further/, Tarpey, to the rail.
BY MR. ELY:
Q But you recognize this officer as the officer that
you saw in 309 East 90th street, on the night of the 2 0th of July, 1906?
A Yes, sir.
Q And did you give anything to that officer?
A Yes, sir.
Q And what did you hand to that officer?
A
A pistol.
Q And where did you find this pistol that youhanded to this officer?
A In the hall.
Q In the hall of the premises 309 East 90th street?
A Yes, sir.
Q Now, on what floor was it?
A Next to the top floor.
Q Next to the top floor?
A Yes, sir.
Q That's the fourth floor, is it?
A Yes, sir.
Q Now I show you People's Exhibit 3, and ask you, if
you recognize that as the article which you handed to Officer
Tarpey, on the evening in question?
A Well, I ain't
sure whether this is the pistol or not, but it was a pistol
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something like this, a dark pistol.
Q And it was, in all respects, like that one?
A Yes, sir.
CROS EXAMINATION BY MR. LE BARBIER:
A No, sir.
Q At any time?
A No, sir.
Q Did you hear the shots even?
A Yes, sir.
Q How many?
A Well I heard one shot, and then I went away, and then I heard one shot right after the other.
Q And how many altogether?
A Three.
Q And how long between the first and second shots?
A Well, I should judge a few seconds.
Q And between the second and third?
A Well, it was one right afterthe other.
Q Did you live there?
A No, sir.
Q How did you happen to be there?
A Why, I was on the top floor, visiting a lady friend of mine.
Q An evening call?
A Yes, sir.
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JOHN G. STEIN, a witness called on behalf
of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Mr. Stein, you are an officer of the Municipal Police
Court of the city of New York?
A Yes, sir.
Q And you were, on the 20th of July, 1906?
A Yes, sir.
Q And to what Precinct were you then attached?
A The
28th.
Q And what was your assignment or detail, on the night
of the 20th of July, 1906?
A I was detailed in plain clothes.
Q And all over the Precinct?
A Yes, sir.
Q And, about eight o'clock in the evening of the 20th
day of July, 1906, where were you?
A In the station house.
Q And where is the station house? Give us the street
andthe number?
A 432 East 88th. Between First avenue and
Avenue A.
Q And just at or about eight o'clock in the evening,
of the 20th of July, 1906, what did you do, or where did you go?
A Well, I was in the Station House.
Q No. Where did you go? We have got you in the
Station House?
A I come in the Station House, about 8:20.
Q Yes?
A And I remained in there until about 9.15.
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Q Well where did you go from the Station House, on the evening in question? That's what I am asking you?
A Well I was on patrol ion the Precinot, until about--
Q Did you go to 309 East 90th street?
A No, sir.
Q Not at all, that night?
A No, sir.
Q And when did you go to 309 East 90th street, if at all?
A I didn't go there at all, until about the 23rd, or so, looking for witnesses.
Q Now, did you see the defendant, on the night of the
20th of July, 1906?
A Yes, sir.
Q Do You see the defendant now?
A Yes, sir.
Q Where is he ?
A That gentleman right here, the small gentleman (Indicating).
Q That small man right there (Indicating)?
A Yes, sir.
Q And when did you see him?
A I saw him in the
Station House.
Q At about what time?
A At about 8:30 P.M.
Q And I show you People's Exhibit 3. Did you ever see that before?
A Yes, sir.
Q And where did you see that?
A I saw that on the desk, in the station.
Q And where was the defendant at that time?
A He was in front of the desk.
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Q And this then was right in front of him, on the desk; was it?
A No; that as right in front of the Sergent, at the back of the desk, when I seen it.
Q Well, that was on the desk, and the defendant was in front of the desk; wasn't he?
A No, sir; the defend- ant--
Q (Question repeated).
A Yes, sir.
Q Now, you see, you don't pay any attention to
the question. Now, pay attention to my questions, and answer them. Now did you have any conversation with the defendant on the night of the 20th of July, 1906?
A Yes, sir.
Q And what was the conversation?
A I asked the defendant, in the back room, I said to him--
Q Now, did I ask you where you asked him? Now, if you will just answer my questions, as I ask them. That's what I want you to do. Now did you have any conversation with the defendant?
A Yes, sir.
Q Now them, what was the conversation? Do you under- stand that question?
A Yes, sir.
Q Now, then, answer it?
A I asked the defendant,
"What was the trouble"? He answerdd, "My brother-in-law came to my house, drunk. He come into the bed room, to fight me.
I was in my underclothes. I am a cripple, and I took the
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pistol in the fight, and it went off"?
Q And what went off?
A The pistol.
Q And did you ask him anything further than that?
A I says to the defendant, I says, "Well, was there a woman in the case?" And he said, "No; family troble."
And I said to the defendant, "You may as well tell me," and he said, " Well, I won't speak no more, until I see my counsel."
Q Now, at that time -- have you told us all, as far as
you can recollect, that the defendant said to you, at that time?
A I believe that's all; yes.
Q Now, did you ask him any more questions?
A No;
not at that time.
Q Now, at any time after that, did you ask him any
more questions? Did you have any other conversation with him? Yes or no?
A Yes.
Q Well did he answer any of your questions, after that? Yes or no?
A No; he answered no more.
Q Now, at anytime on the night of the 20th of July,
1906, did the defendant say anything to you about having been bitten?
A No, sir.
Q At any time after the night of the 20th of July,
1906, did the degfendant say anything to you about having been
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bitten?
A Yes.
Q State when and where the defendant first said
anything to you about having been bitten?
A On the 22nd
of July, going down in a Third avenue car to the Prebyterian Hospital, the defendant rolled up his sleeve, and he said, "Here is that mark where I was saying where my brother-
in-law bit me."
Q Now, all right. Did you look at his arm?
A Yes.
Q NOw, as matter of fact, had the defendant ever said anything to you about being bitten before this time that you refer to?
A He didn't speak to me about it.
Q Will you please answer the question?
A No; he
didn't speak to me about having been bitten, before that day, the 22nd.
Q Did he speak to anybody in your presence?
A Yes.
Q Now do you know what I am talking about? I haven't finished the question yet. Do you? All right, I'll wait.
Now, do you know whether or not he had -- had he, in the presence, before the time on the car, spoken to anybody about being bitten?
A Yes.
Q When?
A In the Magistrate's Court, on the 21st,
he spoke to this gentleman here, Mr. Vereland, (Indicating), and Mr. Vre land explanined it to the magistrate.
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Q Well did you hear anything that the defendant said to his counsel?
A Yes, I heard it.
Q You heard him say something to the counsel about being bitten; did you?
A He showed the--
Q Now please?
A No; I didn't hear him say anything about being bitten; but I seen him show him the arm.
Q Well, then, you don't know whether the defendant said anthing to his counsel about being bitten or not, at all?
A No, sir.
Q And then you did hear the counsl say something in re- gard tothe defendant being bitten?
A Yes, sir.
Q Now, then, I will repeat again. Before the morning
of the 22nd of July, 1906 did the defendant say anything, as
you have described, to you or anybody in your presence, about being bitten?
A No, sir.
Q Now, going back to the car, you say the defendnat rolled up his sleeve, and showed you his arm?
A Yes, sir.
Q And what did you see?
A I saw a red mark, right
on the top of the wrist. It was inflamed. I didn't notice any teeth marks on it.
Q Do you know what an abrasion of the skin is?
A Yes, sir.
Q Well did you notive any abration of the skin?
A Well the--
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Q Now, answer that, if you can?
A No; there was no abrasion; simply red.
Q And about how large was this redness on the wrist
that you are refeffing to?
A I would judge abut the size of a 25 cent piece.
CROS EXAMINATION BY MR. LE BARBIER:
Q Subsequently to July 22nd, did you see the defendant?
A Yes, sir.
Q Where did you see him?
A I see him in the 28th Precinct Station House, and at the Harlem Police Court.
Q Did you make an arrest in this case?
A Yes.
Q When was that?
MR. ELY: I object. It's immaterial. THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Were you at any time in the hospital?
A Yes, sir. MR. ELY: Of course, you mean the Prebyterian Hospital?
MR. LE BARBIER: Yes. BY MR. LE BARBIER:
Q Were you there with the defendant?
A Yes, sir.
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Q Did you see the injured man there?
A Yes, sir.
Q Did you go into the room where he was?
A I did.
Q And did you have any talk with him?
A Yes.
Q Please state what it was?
A July 22nd, at 10: A.M.,
I took the defendant from the Harlem Police Court, in com- pany with Officer Tarpey, to the Presbyterian Hospital.
I went into the bed of the deceased, and I askedhim. I
said, "Ciofolo, Calandra is outside. Do you want to see him?" And he said, "I don't care. If he wants to see, let him come in."
And, at that time, Officer Tarpey and the defendant stood
at the entrance of the ward, about 25 foot away; and I beckoned to Officer Tarpey, and the defendant, to come to the bed side, and I asked the deceased the following questions, I asked him how he felt, and he answered, " I feel good", and I said, "Do
you think that you will ever recover from the injuries that you have received?" And he said, "yes, I think so."
And I took the defendant, Calandra, right to close to him,
to the bed side, and I said, "Is this the man that shot you?" And he looked at him, and hesaid, "No," shook his head;
and I asked the question again, and he said, "No;" and he turned his head.
And then O asled tje deceased, "Well, who did shoot you?"
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He said, "I don't know," and he turned his head. CELIA MANJANARA, a witness called on behalf
of the People, being duly sworn, testified asfollowed: DIRECT EXAMINATION BY MR. ELY:
Q You werebookkeeper for the defendant?
A Yes, sir.
Q And for what period of time?
ME.LE BARBIER: Objected to, as incompetent, immater- isl and irrelevant.
THE COURT: I will receive it. MR. LE BARBIER: Exception.
A One year and two months. BY MR. ELY:
Q And when did you go there?
A The 8th of May, 1905.
Q And up to what time were you in the employ of the defendant?
A About the 21st fo June, 1906.
Q Now, I show you this paper (Indicating), and the
handwriting there. Now do you know whose handwriting that is?
A Yes, sir.
Q Whose is it?
A It's my own.
Q It is your own?
A Yes, sir.
Q And, besides, there is an envelope; is there not?
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A Yes, sir.
Q And in whose handwriting is that?
A In my own.
Q In yours?
A Yes, sir.
Q And, after writing that letter, did you enclose it is that envelope?
A Yes, sir.
Q And did you mail it?
A Yes, sir.
MR. ELY: These I offer now simply for Identif- ication.
(They are marked for Identification). Cross examination: None.
MR. LE BARBIER: I now move to strike out this witness's entire testimony, as it is immaterial, irrelevant entire testimony, as it is immaterial, irrelevant and incompetent.
THE COURT: I will take your motion under ad- visement, and, unless the People connect it, be- fore the close of their case, I'll strike it out. CATHERINE FITZELL, a witness called on be-
half of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q You seem to have a cold, Miss Fitzell?
A Yes, sir.
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Q And what's your business?
A Housekeeper and janitor of 309 East 90th street.
Q Housekeeper and janitor of 309 East 90th street?
A Yes, sir.
Q Is that right?
A Yes, sir.
Q And you were houskeeper and janitress of 309 East 90th street. on the 20th of July, 1906?
A Yes, sir.
Q Now for how long a time before that had you been em- ployed in that way?
A This is the first one ever I have had like this. I
am about five years and some mothsthere.
Q Five years and some moths employed in 309 East
90th street?
A Yes, sir.
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Q And did you know the defendant, Biaggio Calandra?
A Yes, sir.
Q And do you see him here?
A yes, sir.
Q And did you know Mrs Calandra, his wife?
A Yes, sir.
Q Did you know Joseph Ciofolo, the person who is dead?
A Not parsonall; only by meeting him on the stairs, one night.
Q Then you know him by sight?
A No. He made himself know to me as Mrs Calandra's brother. I think I drew his attention--
Q Now, please, please. I only asked you if you knew Joseph Ciofolo?
A I never knew him, only by meeting him on the stairs, and him making himself known--
MR. LeBARBIER: I object to that, and mode to strike it out.
MR. ELY: I consent to striking out of any
conversation between this withness and the deceased. I only asked for the facts, and not for a conversa-
tion.
THE COURT: Strike it out. BY MR. ELY:
Q Now, Mrs--I beg pardon--Miss Fitzell, I want to know
whether or not you ever met the person that is now dead on the stairs. before the 20th of July, 1906, in the premises 309
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East 90th street?
A Not to my knowledge, because there is several men passes up and down, and I don't know them all.
Q NOw, did you see the deceased on the night of the
20th of July, 1906?
A Yes, sir.
Q And where did you see him?
A Two flights up on the stairs.
Q And did you and this man who is now dead have any con- versation? Yes or no.
A "Good evening."
Q Now, please don't give me what it is. Yes or no.
Q Did you and this man have any conversation on the stairs?
A No; only "Good evening."
Q Did you speak to him, or did he speak to you?
A He spoke to me, and he said, "Good night."
Q Now, please don't tell me what he said. He spoke to you?
A Yes, sir.
Q And you spoke to him?
A Yes, sir.
Q Well, then, you conversed, and this was on the stairs?
A Yes, sir.
Q And then you had some conversation on the stairs?
A All right.
Q Now, did you observe the appearance of this man?
A Yes, sir.
Q Now did you--do you know what happened to this man?
A He went upatairs to his sister's rooms.
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MR. LeBARBIER: Objected to, as immaterial, ir- relevant and incompetent.
THE COURT: She may answer. BY MR. ELY:
Q He went upatairs to his sister's
A Yes,sir.
Q Well, he went upstairs; did he?
A Yes.
Q You saw him go upstairs?
A Yes. ME ELY: Well, we will strike c "to his sister's rooms." I will consent to that. THE COURT: Strike it out.
BY MR. ELY:
Q Do you know to whose house or apartments this man went?
A Yes, sir.
Q Whose was it?
A His sister's house.
Q The name of the sister?
A Mrs Calandra.
Q He went upstairs to Mrs Calandra's room; is that right?
A Yes, sir.
Q And you don't know of your own knowledge whether she was his sister, or not?
A Only she had been living there
five years, and only urner that name.
Q Now, did you notice the condition of this man who,
you say, went up into Mrs Calandra's rooms, on the evening of the 20th of July, 1906?
A Yes, sir.
Q What was his condition?
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MR. LeBARBIER: Objected to, as immaterial, irrelevant and incompetent.
THE COURT: You may state what you know of his condition.
A He seemed to me all right.
MR. LeBARBIER: I object to that, and ask to have it stricken out.
THE COURT: It may stand. It seems to prov e] nothing out of the ordinary; it seems to be harmless. MR. LeBARBIER: Well, it would seem to indicate
a great deal. if insinuation is to count for any- thing. But, as matter of law, I agree with your Honor that it is harmless.
THE COURT: I will let it stand. MR. LeBARBIER: Exception. BY MR. ELY:
Q Now, Miss Fitsell, did you see this man again at any
time after you say he had gone into Mrs Calandra's rooms?
A No, sir; not until I saw him coming down to the ambulance.
Q Well, then you did? You saw him in the ambulance,
coming down to be put in the ambulance, didn't you?
A Yes, sir.
Q And that was after he had been in his sister's rooms, I mean Mrs Calandra's rooms; wasn't it?
A Yes, sir.
Q And was this on the night of the 20th of July?
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73
A Yes, sir.
Q That you saw his--this man with whom you had had some conversation on the stairs, who went up into Mrs Calandra's rooms?
A Yes, sir.
Q Brought out and put into an ambulance?
A Yes, sir.
Q And that was the same man?
A The same man.
Q About what time was it that you spoke to him, or he
spoke to you? Now, please don't give me any conversation. It is simply a question about the hour in the evening that
this man went up to Mrs calandra's rooms, and was subsequently taken away in the ambulance?
A Between 7 and 8, sir.
CROSS EXAMINATION BY MR. LeBARBIER:
Q Did you follow this man that spoke to you on the stairs to see where he went?
A No, sir.
Q Well, do you know where he went?
A He told me he was going into his sister.
Q No, do you know where he went?
A Not after he went up two flights.
Q Had you ever seem him before?
A No, sir, not to my knowledge; I wasn't acquainted with him.
Q And during all the five years that you had been there,
you had naver seen him? a Well, I see so many visitors coming into the House.
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Q (Question repeated)
A No, sir.
Q How many years were you there?
A Five years and some months.
Q And, after you had been there that long, then, for the first time, on the night of the 20th of July, 1906, you see somebody in that house, on the stairs, who talked to you, and then goes up two flights further?
A Yes, sir.
Q And you don't know who he was?
A Only what he said himself.
Q But you can't tell who he was?
A No, sir. REDIRECT EXAMINATION BY MR. ELY:
Q But you can tell whether the person who want upstairs,
and who spoke to you on the stairs, was or was not the person who was subswquently taken out in the ambulanve?
A Yes, sir.
Q Well, was he, or wasn't he?
A Well, I only got a
glimpse of him. BY THE COURT:
Q Well, was he or wasn't he?
A He was; yes. RECROSS EXAMINATION BY MR. LeBARBIE:
Q You spoke of a glimpse. What do you mean, Miss Fitzell?
A Just. you know, I was at the foot of the stairs, when he was coming down, and I was watching the man.
Q Did the man have any hair on his face?
A He had a
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mustache, sir.
Q Did he have a mustache?
A It looked to me like one, sir.
Q Well, we want to know, Miss Fitzell. Did he? MR. ELY: I object. She didn't pull it, I pre- sume, sir.
A It looked to me as if he had, sir. BY MR. LeBARBIER:
Q Beard?
A Didn't observe, sir; didn't take notice.
Q Well, you haven't been a witness in many cases; have you?
A No, sir; never before in my life.
Q and you want to say what is right; don't you? MR. ELY: I object to this. It is evident
that the witness does.
THE COURT: There is nothing before me now. Anything else, Mr LeBARBIER?
BY MR. LeBARBIER:
Q How big a man was he?
A That gentleman there is as tall as him (indicating the Crier). but I think he was stouter than he is, and about as tall.
Q How many men passed you, that evening, going into these premises?
A Oh, there is lots of calleers.
BY MR. ELY:
Q That evening, he is asking you about?
A Oh, that
190
76 evening?
Q Yes.
A I didn't see any more coming in that evening. BY MR. LeBARBIER:
Q Was he the only one?
A That's the only one I met, sir.
Q Do you know a family by the name of Giglio?
A Yes;
213 East 90th street.
Q Did you see them there, that night?
A No, sir; I
didn't; to my knowledge.
Q Can't you state a little more particularly, if you will
and can? The time when you saw that man come up the two filights of stairs, as you say, was it eight o'clock?
A It
was between 7 and 8; it may havebeen twenty minutes to 8, or half past 7.
Q Might it have been a quarter of 8?
A It might be;
because I didn't keep track of the time.
Q Now, where were you at a quarter to 8?
A Lighting the lights on the stairs, sir.
Q So that people coming in and out you could see, at a quarter to 8?
A Yes, sir.
Q And xx were you there at ten minutes to 8, also?
A Ten minutes or 8?
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77
Q At a quarter of or ten minutes of eight?
A I come down as soon as I lit the lights.
Q Well, but while you were lighting the lights, was it ten minutes of eight?
A Well I didn't quite look, It might have been a quarter, for all that I could see.
Q Well, was it between ten minutes and a quarter of eight?
A Something of thekind, but I didn't quite look at the clook.
Q Did you see two ladies and a gentleman come downstairs, at that time?
A No, sir, but--
Q Well did you see--
MR. ELY: I object. I think she ought to have an opportunity to answer.
THE COURT: Yes, she may finish her answer. BY THE COURT:
Q Did you finish your answer? a Yes, sir. BY MR. LE BARBIER:
Q Did yo see, between a quarter and ten minutes of
eight, when you say you were on the stairs, the Giglios coming down, to go out?
A No, sir.
MR. ELY: One moment, please. I object; this
has been answerd before. She said that she didn't remember seeing them at all, on that night.
THE COURT: It has been already a answered, Mr.
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78
Le Barbier. But you have got an answer and there is nothing before me now to rule upon.
BY MR. LE BARBIER:
Q On this night in question, did you man that passed
you talk with you, or did he just pass by?
A He said, "Good evening." to me.
Q Is that all he said?
A Yes; all he said.
Q And then he went by?
A Passed up to his sister's.
Q Didn't stop to talk with you, at all?
A No, sir.
MR. LE BARBIER: I move to strike out that he went up to his sister's.
THE COURT: By consent, it is stricken out. BY MR. LE BARBIER:
Q And, from his simple passing you by, and saying
"Good evening" he was, as you say, the man that you have re- ferred to?
A Yes, sir.
Q Did you look at him?
A Yes; just looked at him, and passed downstairs.
Q Did you go down to the hallway?
A I went down to the hasement, sir.
Q To the basement?
A Yes, sir.
Q Well, that house has stairs on the outside, hasn't
it? Did you return do vvnstairs, and stand near the stairs, at all?
A Not after I lit the lights, sir.
79
Q Now, after you lit the lights, and went downstairs, where the stairs leading out into the street are, what time was it?
A About eight O'clook, sir.
Q And during that time, you were on the different stairs leading up into that house, or on the front steps. leading to the street?
A No, sir, I walked around the blook.
Q And what did you do?
A I lit the lights.
Q Now then what did you do after that, being on the basement or first floor. what time was it?
A Ten minutes to eight, I suppose.
Q At that time?
MR. ELY: I object to that, and ask to have it stricken out, for the reason that it is her sup- position.
BY THE COURT:
Q What is your best recollection of the time, Madam?
A Well, about a quarter to eight.
BY MR. LE BARBIER:
Q When you had lit the gas, and come down to the first floor?
A Yes, sir.
Q Now, when you were on the first floor, did you see the
Giglios go out?
A No, sir. BY MR. ELY:
Q Now, Miss fitzell, you were lighting the lights on the
194
80
second stairway, were you, when this man went up that you subsequently saw taken away in the ambulance?
A They were lit then, sir.
Q Oh, you had lighted them and you were on your way down- stairs?
A Yes, sir.
Q And you went directly downstairs after having spoken with this person, as he went upstairs?
A Yes, sir.
Q Now, did you know prior to the 20th day of July, 1906,
of any relationship existing between this man and Mrs. Calan- dra?
A No, sir.
MR. LE BARBIER: objected to, as incompetent, immaterial and irrelevent, and no part of the exam- ination in chier.
THE COURT: Well, she says no. Go on, Mr. Ely. BY MR. ELY:
Q Now, after you had spoken to him, on the night of the
20th of July, 1906, on the stairway, had you any information as to his kinship or relationaship with Mrs. Calandra?
MR. LE BARBIER: Objected to, on the ground that she said she didn't speak to him, and that he only said "Good evening".
THE COURT: She may answer.
A He said "Good evening" to me.
(The question is repeated by the stenographer)
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81
A No, sir.
BY MR. ELY:
Q Do you understand that question?
MR. LE BARBIER: I submit she understands it. She talks English.
A Yes, I understand the question. BY MR. ELY:
Q There wasn,t anything else said but "Good evening"?
A No, sir. And then--
Q Well now --
A Well, it is so long ago, I forget.
Q Well, but now we have got a light in now that is pene- trating. Please don't tell me what was said, but something else was said than "Good evening"?
A Yes, sir.
Q And by this man who walked upstairs?
A Yes, sir.
Q Whom you subsequently saw taken away in the ambulance?
A Yes, sir.
MR. LE BARBIER: Move that those two last ques- tions and answers be stricken out, on the ground that they are incompetent.
MR. LE BARBIER: Exception.
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82
PIETRO PIASTRO, a witness called on behalf of
the People, being duly sworn, and examined through the official interpreter, Philip Dollin, testified as fol-
lows:
DIRECT EXAMINATION BY MR. ELY:
Q Where do you live, Piastro?
A 301 91st Street, and Second Avenue.
Q Well, 301 East 91st Street?
A Yes, sir.
Q And where did you live on the 20th of July, 1906?
A At the same house.
Q Did you know Joseph ciofolo, in his lifetime?
A Yes, sir.
Q And for how long a time before the 20th of July, 1906,
had you been acquainted with Joseph ciofolo?
A Four years.
Q Was Joseph ciofolo any kinsman or relative of yours,
or connection of yours?
A He was an uncle to my wife.
Q And do you know the defendant, Biaggio Calandra?
A Yes, sir.
Q Do you see him here?
A Yes, here he is (indicating).
Q Now, before the 20th of July, 1906, where did you work?
A I worked for the defendant.
Q And for how long a period before the 20th of July,
1906, had you been working for the defendant?
A About two years,-- about two or three years.
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83
Q Now, looking at people's Exhibit 3--take it in your hand -- did you ever see that?
A No.
Q You never saw it?
A No.
Q Now, do you know, as a fact, whether the defendant -- did you ever see the defendant with a revolver?
MR. LE BARBIER: Objected to, as immaterial, irrelevant and incompetent, and not within the issue in the indictment.
THE COURT: I will receive it, it is a pre- liminary question.
MR. LE BARBIER: Exception.
A This here, I don,t know (indicating the revolver in evi- dence) but, when he came to the office, he always put the re- volver in the drawer.
Q Now, I didn't ask you anything about putting it in the drawer.
MR. LE BARBIER: Now, I move that that be strikcken out.
MR. ELY: I consent. Now please repeat my last question, Mr. Stentographer.
(It is repeated by the stenographer) BY MR. ELY:
Q Now yes or no.
A I don,t recognize this revolver, but--
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84
BY THE COURT:
Q That is not the question. Did you ever see the de- fendant with a revolver?
MR. LE BARBIER: Objected to, as immaterial, irrelevant and incompetent.
THE COURT: You have already objected. and you have already your exception and now I am repeating the questtion.
MR. LE BARBIER: Exception.
A Yes; he had a revolver.
BY MR. ELY:
Q How many times did you see a revolver in the pos- session of the defendant?
MR. LE BARBIER: I object to that as immaterial, irrelevant and incompetent.
THE COURT: It is preliminary. Uless con- nected, I am going to strike it all out.
MR. LE BARBIER: Exception.
A He had it every day.
BY MR. ELY:
Q And did you ever take the revolver that you saw in the possesstion of the defendant in your hand?
A No, sir.
Q And what did you see the defendant do with a revolver, which you say you saw in his hand, every day?
199
85
MR. LE BARBIER: Objected to, as immaterial, irrelevant and incompetent.
THE COURT: Answer.
MR. LE BARBIER: Excetption.
A He used to put it into the drawer and them, when he left the office. he took it with him.
BY MR. ELY:
Q Now did you ever see a weapon of any kind in Joseph
Ciofolo's possenssion. Yes or no.
A No, sir. CROSS EXAMINATION BY MR. LE BARBIER:
Q What do you mena by "weapon", that you just answered?
A Well, any weapon; a knife or anything else.
Q
A knife or what?
A A knife or anything else.
Q Well, what do you mean by that?
A Knife or what?
A Well, I understand by a weapon, a knife, or stiletto, or anything sharp in point.
MR. LE BARBIER: Didn't he say also, a pistol? THE INTERPRETER: No, sir, he didn,t mention a pistol.
BY MR. LE BARBIER:
Q In what capacity did you work for the defendant?
A Oh, I was packing fruits; pineapples, bananas and fruits.
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86
MR. LE BARBIER: I respectfully move, may it please your Honor, to strike out all the testimony of this witness, on the ground that it is immaterial, irrelevant and incompetent.
THE COURT: Well, won't you renew your moticn at the close of the case? All these motions to strike out the testimony, if not connected, are bet- ter made at the end of the case. I cannot very
well limit the People as to the exact time when they will connect any particular testimony.
MR. LE BARBIER: Exception.
MR. ELY: Well, if your Honor please, I have another witness ready, but the witness will be necessarily very long; and, therefore, I will ask that your Honor adjourn until to-morrow morning, when I will take up that witness.
THE COURT: Very well.
(The court then admonished the jury in ac- cordance with Section 415 of the Code of Criminal Procedure and took an adjornment until Friday morn- ing, October 19th, 1906, at half past ten o'clock
201
THE PEOPLE v. BIAGGIO CALANDRA. New York, October 19th, 1906.
TRIAL RESUMED.
MR. LeBARBIER: I understand that the prosecu- tion has not yet finished?
MR. ELY: Well, that's right.
MR. LeBARBIER: But it is likely to finish at almost any moment?
MR. ELY: That is wrong.
MR. LeBARBIER: Well, then it may take some time.
THE COURT: Proceed with your motion.
MR. LeBARBIER: I want to suggest this to your
Honor. We have two gentlemen from Brown & Seccomo's, auctioneers, and they have heavy sales on.
THE COURT: Well, what are they for? Character witnesses?
MR. LeBARBIER: Yes, sir.
202
THE COURT: And what do you want? To put them on now?"
MR. LeBARBIER: Yes, sir; if I might suggest
the interruption of the orderly procedre, and put them on now.
THE COURT: Mr Ely, what do you say? MR. ELY: Oh, I don't object at all. I am willing to do anything to assist.
THE COURT: Then you may call them.
JOSEPH H. MOORE, a witness called on behalf of the defence, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. LeBARBIER:
Q Where do you reside?
A 156 Montague street, Brook- lyn.
Q What is your occupation?
A I am a member of the firm of Brown & Seccomb, auctioneers.
Q How long have you been with that firm?
A Well, it will be about thirty-five years next December.
Q Do you know this defendant, Biaggio Calandra?
A I do.
Q How long have you known him?
A Well, about ten
203
years, I should think; it might be over.
Q Do you know other people who know him?
A I do.
Q Do you know his reputation for truth and veracity, what it is ?
A Good.
Q Do you know what his reputataion is for peace and quiet- ness?
A Good.
Q It is good, to your knowledge?
A Yes, sir. CROSS EXAMINATION BY MR. ELY:
Q Now, what is your name, sir?
A Joseph H. Moore.
Q Now, Mr Moore, have you know this defendant during these ten years in any other way than in a business way?
A That is all.
Q And you have never had any social or other relations with him?
A No, sir.
Q Purele business?
A Yes, sir.
Q And you are an auctioneer?
A I am, one of them, and
I have got charge of the city collections for the house.
Q And it was in the scope of your business that you knew him?
A Yes, sir.
Q Simply as a business man?
A Yes, sir.
Q And he paid his debts, and that's all you know about him, really; isn't it?
A Yes; I know he has a good busi- ness character.
204
Q Do yoy refer to his business character?
A Yes, sir.
Q For paying his debts?
A Yes. And, outside of that,
too. I know that his character is good for anything he wanted, or his word was perfectly good for anything that he said.
Q Yes. And have only been dealing with him in a purely business way?
A Yes, sir.
Q And that is all you know about him, in a purely busi- ness way?
A Yes, sir.
REDITECT EXAMINATION BY MR. LeBARBIER:
Q Did you know Joseph Ciofolo?
A Yes, sir.
Q How long have you known him?
A About fifteen years.
Q Do you know others who knew him?
A Yes, sir.
Q DO you know what his reputation was for peace and quiet?
A To the best of my knowledge, bad.
MR. ELY: Now, I object, and I ask to have it stricken out. He says to his knowledge, bad. THE COURT: No. That was not the question that was asked you. Strike it out.
BY THE COURT:
Q Now, do you know his reputation in the community?
A Yes; and that's bad.
RECROSS EXAMINATION BY MR. ELY:
Q Now, How did you know Joseph Ciofolo? In a business
205
way purely?
A Yes; that's all.
Q And what did you know his repptation to be in the
business community?
A Well, I knew him to have the reputa- tion for being a quarrelsome man.
Q And you knew that of your own knowledge or because--
A Of my own knowledge, sir.
Q And that's the only way you knew it; isn't it?
A No; I have heard other people talk about it.
Q And how recently did you hear anybody talk about it?
A Oh, in the last yars or so.
Q In the last year only?
A Well, I've heard it talked about a great many times, besides the last year.
Q Well, I am asking you?
A And I am telling you
that I have heard it talked about a great many times, besides the last year.
GEORGE L. BUCKMAN, a witness called on behalf of the defence, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. LeBARBIER:
Q Mr Bukman, where do you live?
A 29 West 93d street, New york City.
Q New York Coundty?
A Yes, sir.
Q Do you live there with your family?
A No, sir;
206
single man.
Q What is your occupation, Mr Buckman?
A One of the firm of Brown & Seccomb.
Q What is their business?
A Auction business.
Q Do you know how long they have been established in this business, in this city?
A Yes, sir; about 45 years;
45 or 50.
Q And where is their place of business?
A 235 West.
Q Do you know Biaggio calandra, the defendant?
A Yes, sir.
Q How long have you know him?
A Fully fifteen years or over.
Q And do you know other people who know him?
A Yes, sir.
Q Do you know what his reputation is for truth and ver- acity?
A Yes, sir.
Q What is it? Good or bad?
A Very good.
Q And do you know what his reputation is for peace and quiet?
A Very good.
Q Well, you know, do you?
A Yes, sir.
Q Well, what is it? Good or bad?
A Very good.
Q Now, do you know Mr Joseph ciofolo?
A Yes.
Q Or did you know him?
A Yes.
207
Q How long did you know him, Mr Buckman?
A Fully fifteen years.
Q Did you know other people who knew him?
A Yes, sir.
Q Do you know other people who knew him when he was alive?
A Yes, sir.
Q Do you know what his reputation was for peace and quiet?
A Yesm sir.
Q What was it? Good or bad?
A Bad. CROSS EXAMINATION BY MR. ELY:
Q Mr Buckman, did you ever have anything to do with Jo- seph Cifolo, except in a purely business way ?
A No, sir.
Q And Ciofolo was representing the interests of the de- fendant; wasn't he? a Yes, sir.
Q And he was insistent upon the interests of the defend- ant being fully observed; wasn't he?
A How is that?
Q (Question repeated.)
A I don't know.
Q Well, I am asking you for your knowledge?
A am not asking you for anything else?
A Won't you kindly give me that again?
(The question in repeated by the Stenographer.)
A Yes.
Q And it was in his insistence on the conservation of
the interests of the defendant that you noticed that he was, perhaps, not as gentle as you might otherwise wish?
A I
208
should think so.
Q And that is the basis for your statement that his repu- tation for peace and quite is bad? Yes, it was.
Q Well, now, you say that you have known the defendant for fifteen years?
A Yes, sir.
Q You have known him in a purely business way?
A Yes, sir.
Q Have younknown him in a social way, at all?
A No, sir.
Q Have you been around with him at all?
A No, sir.
Q Have you ever been to any functions at which he at- tended?
A No, sir.
Q And, as far as his private and domestic life is con- cerned, he is a stranger to you; is he?
A Yes, sir.
Q And the only knowledge that you have of him at all is in connection with business; is that right?
A yes, sir.
Q As an auctioneer?
A Yes, sir.
Q He is peaceable about his bills?
A Yes, sir.
Q And has responded, from a business standard?
A Yes, sir.
Q To the conditions that obtain in business circles;
is that right?
A Yes, sir.
Q And that is all you know about him; isn't it?
A Yes, sir.
209
REDIRECT EXAMINATION BY MR. LeBARBIER:
Q Pardon me. I overlooked something. Now, how long have you been with Brown & Seccomb?
A About thirty-six years.
Q What do you mean?
A I have been connected with the firm.
Q And what do you mean when you say that the deceased was insistent upon the defendant's interests?
MR. ELY: I object.
THE COURT: I do not see that that needs any explanation.
MR. LeBARBIER: Do you still object? Answer. THE COURT: No. I sustain the objection. It
has been objected to.
MR. LeBARBIER: Why, I submit, your Honor,
that it is simply a conclusion, in the direct examin- ation; and we have a right to know what he means. MR. ELY: In the direct examination?
MR. LeBARBIER: Well, in the cross examination, then.
BY THE COURT:
Q Well, do you wish to modify or change your answer? MR. LeBARBIER: But he doesn't say that he
wants to modify or change it. We want to know what
210
he means.
THE COURT: Well, I have asked the question. MR. LeBARBIER: And I object to the question, your Honor.
THE COURT: Well, I have asked it, and I'll
give you an exception, and sustain the objection. MR. LeBARBIER: But I submit it is simply
a suggestion from your Honor, the witness doesn't say that he wants to do so.
THE COURT: Objction sustained. MR. LeBARBEIR: Excetpion.
Q What did you mean, when you were answering the ques-
tion of the learned Prosecutor, when he spoke to you about the deceased being insistent upon the observation of the defend- ant's interests?
MR. ELY: Objected to. I didn't say observa- tion.
THE COURT: Objection sustained. MR. LeBARBEIR: Exception.
MR. ELY: If your Honor please, if there are any
other character witnesses, we might have them right along now, and get through with all of them.
THE CORUT: Yes, that may be done. Of course,
211
I do not direct it, or order it.
MR. LeBARBIER: Very well. We will pursue that course.
JOHN C. BERRY, a witness called on behalf of the defence, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. LeBARBIER:
Q Where do you live, sir?
A 15 West 65th.
Q Are you a married man?
A Yes, sir.
Q And what is your business, may I ask?
A Reporter for R.G. Dun & Company.
Q And how long have you been with R.G. Dun & Company?
A ON and off, thirty-three years.
Q who is R.G.Dun & Company?
A Mercantile agency.
Q Where?
A 290 Broadway.
Q In this county?
A In this county.
Q Do you know the defendant, Niaggio Calandra?
A I do.
Q Do you know other people who know him?
A I do.
Q How long have you known him?
A Over three years.
Q Do you know what his reputaion is for truth and ver- acity?
A I do.
Q What is it? Good or bad?
A Good.
Q Did you know Joseph Ciofolo in his lifetime?
A I
212 did.
Q I also meant to ask you, do you knwo what the reputa- tion of the defendant is for peace and quiet?
A I do.
Q What is it? Good or bad?
A Good.
Q How long have you known--did you know Joseph Ciofofo?
A Over three years.
Q Do you know other people who knew him?
A I do.
Q Do you know what his reputation is for peace and quiet?
A I do.
Q What is it? Good or bad?
A Good. CROSS EXAMINATION BY MR. ELY:
Q Berry--is that your name?
A Yes, sir.
Q Is the Dun Agency in the business of finding out the reputaions of people for peace and quiet?
A Well, as to general character.
Q No, no. Just answer that question?
A No.
Q And you are an employee of Dun's Agency?
A Yes, sir.
Q Did you ever know the defendant, except purely as a representative of Dun's consort with the defendant, at all; did you?
A Only in a businiess way.
Q Well, did you consort with him in a business way?
What do you mean by consorting with him in a business way?
213
A Oh, well, I misunderstood that question.
Q Or, I thought so. Well, you have met him in a busi- ness way?
A Yes, sir.
Q From time to time?
A Yes, sir.
Q Now, it is uaual, is it not, in all commercial agen-
cies, to investigate the reputation and financial standing
--of course, when I say reputation, I mean financial reputa-
tion and financial standing--of a merchant, and then take him-- to rate him on that basis?
A Yes, sir.
Q And it is not usual for a commercial agency to con-
tinue to send agents around to this merchant, whose reputa- tion, fincncial reputation, they have investigated, unless
there is some cause for it; is it?
A We are supposed to--
Q Now, please. I don't want to know what you are supposed to do. If the question is obscure, and you don't understand,
I wil try to frame it differently?
A Let me have the question again.
(The question is repeated by the Stenographer.)
A Yes, sir.
Q That's right; isn't it?
A Yes, sir.
Q Now, during the three years that you have seen the
defendant, you saw him on each occasion, as the representative of Dun's Agency; didn't you?
A Yes, sir.
214
Q How many times do you suppose, in the three years, did you see him, that you say you knew him?
A Well, I would see him two or three time a week.
Q His credit as bad as that?
A No, sir.
Q Well, younsaw him two or three times a week on business matters; didn't you?
A Yes,sir.
Q And your interviews would be of a length from five to
ten minutes perhaps or more, or what were they?
A Well, from ten to fifteen or twenty minutes. It was according to--
Q From ten to fifteen or twenty minutes?
A Yes, sir.
Q And you say that you saw this defendant on an average of two or three times a week?
A Yes, sir.
Q For three years?
A Yes, sir.
Q And you are a credit man for Dun's?
A I am a re- porter for Dun's.
Q Well, I know. One of the credit reporters; arn't you?
A Yes, sir.
Q Perhaps I have not described it properly. But you
are one of the persons who run around and investigate the credit or financial standing of various people?
A In the prouduce line; yes.
Q In the produce line?
A Yes, sir.
Q And then you are one of the credit men of Dun's?
A Yes, sir.
215
Q And you report on the credit of various people?
A Yes, sir.
Q And you were going to see one of the representa-
tives of the produce trade, when you went to see the defend- ant; wern't you?
A Yes, sir.
Q And that's all you know about him; isn't it?
A Yes, sir.
Q You didn't discuss with anybody whether he was a pugllistically inclined man, or a peaceable man; did you?
A No, sir.
Q And you don't know anything about that; do you? as
far as his domestic life and other relations are concerned?
A No, sir.
Q And you never mentioned it to anybody; did you ?
A No, sir.
Q Now, this man ciofolo, you say that you know Ciofolo?
You know that he is dead, and, therefore, we will discuss him without gloves. You saw Ciofolo, Joseph Ciofolo, from time to time, during these three years; didn't you?
A Yes, sir.
Q Did you used to go out and about with Joseph Ciofolo?
A No, sir.
Q Well, he was about your age; wasn't he?
A No, sir;
he wasn't about my age.
Q Well, you didn't have any relations with him, at all, except of a purely business character?
A Yes; that's all.
216
Q And you only met Jpseph Ciofolo in the course of your dealings with the defendant's businiess?
A Yes, sir.
Q And you only met Joseph Ciofolo as a representative of the defendant in his business?
A Yes, sir.
Q And the relations, the entire relations that you had
with ciofolo, were distinctly and absolutely confined to the defendant's business; wern't they?
A Yes, sir.
Q And you found him energetic on behalf of the defend- ant; didn't you?
A No, sir.
Q You didn't?
A No, sir.
Q Well, did you find him disagreeable?
A Yes, sir.
Q And that is the basis you have for saying that his general reputation was bad; isn't it?
A No, sir.
Q Well, what is it? If it was bad, let's hear it.
I am willing to have it out.
A His reputation, from what I
heard from outside, was bad.
Q His reputation, from what you heard cutside, was bad?
A Yes, sir; and his actions--
Q Now, wait a minute. Now, you have got that statement, and we will think of that for a minute. Now, whan did you first hear--his reputation for what, first?
A For being dis- agreeable.
Q Oh, for being disagreeable?
A Yes, sir.
217
Q That is, he didn't have a sweet temper; is that right?
A Yes, sir.
Q And you were informed from people on the outside that he didn't have a good temper?
A Yes, sir.
Q And that's all you know about him; isn't it?
A Yes, sir.
MR. LeBARBEIR: Those are all the character witnesses we have here now.
THE COURT: Very good. I shall limit you to one or two more.
MR. LeBARBIER: Well, I was going by the rule of six witnesses as to character.
THE COURT: Oh, no; possibly one or two more. ANGELINA CALANDRA, a witness called on behalf
of the People, being duly sworn, and examined through the official interpreter, Gustav St. Albe, testified as follows:
DIRECT EXAMINATION BY MR. ELY:
Q Now, your name is Angelina Calandra?
A Angelina Cal- andra, yes.
Q And where do you live now?
A 91st street, No. 69.
218
Q west or east?
A East.
Q 69 East 91st street?
A Yes, sir.
Q And how long have you lived the re?
A three months.
Q And you are the wife of the defendant here; are you not?
A Yes, sir.
Q And you and the deceased were related; weren't you? Joseph Ciofolo was your brother; was he not?
A yes, sir.
Q Now, on the 20th day of July, 1906, where did you live?
A In 90th street, near Second avenue.
Q At 309?
A 309.
Q Now, how long have you been married to the defendant?
A Ten years.
Q Now, do you know a person by the name of Celia Manja- nara?
A It is a woman. I know her.
Q And how long have you know Celia Manjanara?
A Four years.
Q And do you know whether or not she was employed by the defendant?
A She was bookkeeper.
Q Now, from the middle or last end of June, up to about
the 15th of July, were you living with your husband, the defend- ant?
MR. LeBARBIER: Objected to, as incompetent, immaterial and irrelevant.
219
THE COURT: It is a preliminary question. It may be asked. Objection cverruled.
MR. LeBARBIER: Exception.
A I never saw him.
BY MR. ELY:
Q Well, you were not living with him during that time?
A No.
Q Now, on or abput the 15th day of July, 1906, did you
see your husband, the defendant?
A I don't understand you.
Q Well, at Bensonhurst?
A Sure, I saw him.
Q At Bensonhurst?
THE INTEPRETER: This lady says that I don't understand her.
MR. ELY: What is that?
THE INTERPRETER: She says she don't want to say anything to me. She says that I don't under- stand her, and she doesn't understand me, because she is a Sicilian. Up to the present moment, I understood her perfectly; but, if she don't want to understand me, I can't help it.
MR. ELY: Well, repeat my last question, Mr
Stenographer.
(It is repeated by the Steongrapher.)
220
A Yes; I saw him in the house of Mr Campagna. BY MR. ELY:
Q At Bensonhurst?
THE INTERPRETER: She says that she don't know. THE WITNESS: Yes, Yes.
MR. LeBARBIER: I move to strike out all of
the colloquy that has transpired here on the part of the interpreter, and his conclusion as to what he thinks the witness meant; and, if, because it is Sicilian, he cannot understand, then I respectfully protest against the interpreter.
THE COURT: I will strike out the colloquy referred to, if you will indicate to me the pre-
cise words that you wish stricken out. Always do that on a motion to strike out, because, otherwise, you leave it to the judgment of the Steonographer, and that ought not to goven.
MR. LeBARBIER: The whole statement of the in- terpreter.
THE COURT: Won't you tell me the words to which you make objection, so that I may rule on that ex- actly and accurately?
MR. LeBARBIER: Will the Stenographer kindly
221
repeat them?
(It is repeated by the Stenographer as follow:
"She says that she don't want to say anything to me.") THE COURT: Now that may proarly ramain in,
I think. Proceed, Mr Stenographer.
(The Stenographer repeats further as follows: "She says that I don't understand her, and she doesn't understand me, because she is a Sicilian.") MR. LeBARBIER: Now, that being so, your Honor, we must object to the Interpreter.
we must object to the Interpreter.
THE COURT: Then there is no motion to strike out anything befoer me, is there, Mr LeBarbier? MR. LeBARBIER: Yes, sir; and we move, also, to have that stricken from the record.
MR. ELY: Well, why should it be stricken from
the record? We have to act upon it, and change the
Interpreter, why should it be stricken out? THE COURT: That is the very point. If it is stricken out, you are kicking out the very stool on which you stand. I'll strike it out, if you wish, but, if you wish it to stand, it may stand.
MR. LeBARBIER; I think it is so apparent to your Honor--
222
THE CORUT: No, no. You either want it to stand or you do not. Which is it?
MR. LeBARBEIR: Well, I would like to have it stricken out.
THE COURT: Now, then, strike it out.
MR. LeBARBIER: Under what he has said in this. case, now, he does not understand the witness, we must object to the interpretation.
MR. ELY: Well, that is stricken out, and not before us.
THE COURT: Well, Mr Interpreter, if you do
not understand, you will of course indicate that fact.
THE INTERPRETER: Yes, sir; of course, at once. BY MR. ELY:
Q Then it was at the house of Mr Campagna, at Bensobhurst on or about the 15th of July, 1906?
A Yes, sir.
MR. LeBARBIER: Now, I will respectfully move to strike cut this answer, as immaterial. And, in support of that, I beg leave to call to your Honor's attention to the opening of the District Atorney, wherein he stated to your Honor and this jury that, from June 15th--I think it was--they were living to- gether.
223
MR. ELY: I did not. Anyway, if the District
Attorney made a statement--
THE COURT: No, not now, Mr Ely.
MR, LeBARBIER: And he tries to leave by this testimony some intangible insinuation in the case that is not borne out by the facts.
THE COURT: I Will deny your motion, and give you an exception.
MR. LeBARBIER: Exception. BY MR. ELY:
Q Now, who was there, at that meeting, with your husband,
the defendant, at Mr Campagna's house, in Bensonhurst, on or about the 15th of July, 1906?
A My husband and my brother.
Q And who else?
A Mr Campagna and Mrs Campagna.
Q And who else?
A And myself and sister.
Q And who else?
A And my brother-in-law.
Q Yes. And who else?
A That's all.
Q Wasn't Celia Manjanara there on that day?
A No, sir.
Q And was Dr. Nessina there?
A No.
Q Well, I may not have gotten the name rght. Now, who did your husband go there with?
MR. LeBARBIER: Objected to, as wholly immate- rial, your Honor.
THE COURT: Ovarruled.
224
MR. LeBARBIER: Exception.
A I don't know. I found him only in the house of
Campagna.
Q Well, wasn't Dr. Giovanna Marena there?
A No, sir.
Q Now, did you have any discussion with the defendant, on the 15th of July, 1906, about Celia Manjanara?
MR. LEBARBIER: Objected to, as indefinite, and sincompetent, immaterial and irrelevant, and leading, and uncertain.
THE COURT: Well, Mr Ely, what is the relevancy, as you claim?
MR ELY: Well, I don't care to state it before the jury.
THE COURT: Very well. I will receive it then, subject to a motion to strike out, unless it is con- nected.
MR. LeBARBIER: Exception.
A No.
BY MR. ELY:
Q Now, do you remember the night of the 20th of July,
1906?
A Yes, I remember.
Q And who was present, who was at your house, at seven o'clock in the evening, of July 20th, 1906?
A Mr Giglio,
225
Mrs Giglio and Carrie Giglio.
Q Mr Vito Giglio and his mother and sister?
A Yes, sir.
Q And what time did the Giglios come to your house on the night of the 20th of July?
A I con't exactly state the time, but I think it was about half part five or six o'clock in the evening.
Q And how long did they stay at your house on that even- ing?
A About two hours.
Q wall, about what time did they go away, about what time did they leave?
A About eight o'clock, or less than that.
It might have been eight o'clock in the evening, or ten min- utes less than eight o'clock, or ten minutes to eight.
Q Now, did you see your brother before the Giglios left, on that evening?
A Yes; because he was in my house.
Q Now, what time did your brother come? About how long before the Gig;ops wemt. did your brother come into your house?
A About half an hour before.
Q Was the defendant at your house when your brother came in, on the evening in question?
A Yes, sir.
Q Now, what were you and the Giglios and the defendant doing, when your brother came in, on the evening in question?
A We have been eating.
Q And how long had your husband been in the prmises before your brother came in, on the evening in question?
226
A My husband had been in the house about more than one hour.
Q Now, when your brother came in, did you hear any conversation between your brother and your husband?
A My brother, when he came in, he said, "ALL those that are eating are living, and the others have to wait for it."
Q Will you tell me again what your brother said, when he came is, please?
A "All that are present are eating and drinking, and we that are in business have to wait."
q And now what, if anything, did the defendant reply to that?
THE INTERPRETER: And, now, what she says, I
can't understand.
MR. LeBARBIER: And we object.
MR. ELY: And why should they object, if your Honor please? The Interpreter says that what she says now he can't understand, so he can't interpret. THE COURT: Well, put it in a different from,
if you can, and then bring it to my attention. BY MR. ELY:
Q Well, what did the defendant say, if anythign, after
your brother had made the remark that you have just testified? THE INTERPRETER: That I can't understand,
what she just says.
227
THE COURT: Prof. St. Albe, have we any inter- preter who can interpret?
THE INTERPRETER: Well, the only man who under- stands Sicilian, more or less, is Mr. Morrossi.
THE COURT: Well, shall I send, gentlemen, for Prof. Morrossi?
THE INTERPRETER: I know that he speaks Sicilian. THE COURT: Then send for Prof. Morrossi.
MR. ELY: The ninth juror has a question to, ask.
THE NINTH JUROR: Are the jury to understand that that was a correct interpretation of the answer that was
given by the previous interpreter?
THE COURT: Yes, There is nothing to the con- trary. The Interpreter has said that he understood perfectly, up to a certain point. I then instructed him, in the event of his failure to understand, that he should so state, and, shortly after, he said, "I
don't understand, I can't interpret." and we have now changed interpreters; and you are bound, gentlemen, by the interpretation. You must accept it as it is
given. Whether you believe the evidence or not, is for you to datermine. But you must accept the in- terpretation as a correct interpretation.
228
(Benedetto morrssi acted as interpreter from this point on.)
BY MR. ELY:
Q Now, madam, a moment ago, you testified what the de- ceased, your brother, said when he came into your rooms, into your apartment, on the evening of July 20th, 1906, and the question now is, Please give what the defendant said in reply
if anything?
A Do you want the answer of my husband?
Q That's what I am asking for?
A My husband said as follows to my brother; nobody has said that he should wait,
When the time of the closure had arrived. the place would be closed. adn he could go.
Q Now, after this, was there any further conversation be- tween your brother and the defendant?
A No talk at all,
Q Was there not some conversation between the defendant and your brother in English, ensuing then, which you didn't understand?
A First, we offered our brother some food, and he refused to accept it.
Q No, no. I am not asking that. That is not the ques- tion at all. THE question is: After the remark that was
made by the deceased. and the answer that was made by the de- fendant, was there not some further conversation between the deceased and the defendant, in English, which you didn't under-
229
stand? Yes or no that calls for?
A Yes, they talked a little in English.
Q That's what I am getting at. Now tell me everybody
the was there, when this conversation happened, took place?
A In the presenc of those presons, they didn't talk any-
thing.
Q Now, that's not my question.
(The question is repeated by the Stenographer.)
A Mrs Giglio, Mr Giglio, Katie Giglio; that's all.
Q Well, and yourself and the defendant?
A Certainly, of coures. I was there in my house.
Q Well, that,s all right. And yourself and the defend- ant and the deceased?
A Yes, sir.
Q And what were you all doing, at the time of this con- versation; what were you all doing?
A My husband said, "Let us have a glass for the heath."
Q Now, at the time of this conversation what were you
all doing? Were you all sitting around, or standing around,
or lying around, or what? I want to know what you were doing?
A They were seated.
Q Well, you were sitting, weren't you? You were all sittingl weren't you?
A All around the table.
Q In the kitchen?
A Yes, sir.
Q Well, now, what afterwards did your brother day?
230
A He didn't say anything.
Q Now, did you make that mark there (indicating a paper)?
A Yes, sir.
Q And this was on the 1st day of August, 1906, that you made this mark?
A Yes, sir.
Q Now, for this purpose of refreshing your memory, I
ask you--
MR. LeBARBIER: We object to the reading from
any paper, in order ot refresh any memory, as incom- petent and immaterial.
THE COURT: Go on, Mr Ely. I will determine when I have heard the full question.
Q I ask you if, at the District Attorney's office on the
1st of August, 1906, you said: "Then my brother said, 'Here are all my friends. Lets have a drink, and we can talk about the matter, no more.'"
A It was my husband said so, and
not my brother.
Q Well, then that was said, was it; that remark was
made?
A Yes, sir; and it was my husband thatmade the re- mark.
Q Now, after that, how long after that was it before anybody went out of the room, after that remark?
A Yes; I don't know.
231
Q Well, about how long?
A Nobody went out. My
husband rose, in order to fix the alarm clock, because he had to get up at one o'clock.
Q Now you say that the three Giglios were there, don't get up at one o'clock.
Q Now you say that the three Giglios were there, don't you?
A Yes, sir.
Q And did they stay there all night?
A No.
Q Well, them, I ask you how long after this remark was
made by your husband, did anybody go out of the room?
A No- thing; just a few minutes; maybe five minutes.
Q Yes."well, then, after five minutes afterwards, the Giglios went out?
A Yes, sir.
Q And who was left in the kitchen then?
A I, my bor- ther, my husband.
Q And anybody else?
A Nobody else; we three were alone.
Q And then did you hear any conversation between your brother and your husband, after the Giglios had left the room?
A They talked a little while, in English.
Q And you didn't understand that?
A No.
Q And, after they had talked a little while in English,
in the defendant's presence, did yourbrother say anything to you?
A He didn't say anything.
Q Do you remember--didn't you say, on the 1st of August,
1906, at the District Attorney's office: "And, at the termin-
232
ation of the conversation, my brother said, 'Good night. I's going to leave.' This was addressed to me"?
MR. LeBARBIER: Objected to, as immaterial, irrelevant and incompetent.
MR. ELY: It is simply for the purpose of re- freshing the witness's recollection.
MR. LeBARBIER: Exception.
A He merely said, "Good night". He didn't say, "I am going to leave," or "I leave."
233
F-1
Q Now, how long after the Giglios left, did your brother lrave your kitchen, on the night in question?
A I can't
exactly remember, because I wasn't minding anything in parti- cular, but it might have been some five minutes.
Q Now do you remember that, on the 1st of August, 1906, you said, at the District Attorney's office: "About ten or fifteen minutes after the Giglios left, my brother left"?
MR. LE BARBIER: Objected to.
MR. ELY: However, I will withdraw the question, and go on. It doesn't make any difference.
BY MR. ELY:
Q Well, your brother did leave your rooms, on the night in question, after he had said, "Good night,"did he?
A Yes, sir.
Q And when your brother left, what did you say to your husband?
A My husband was in bed, and I said, "In this house there are always troubles."
Q Didn't you say, "There are always trouble about the business?"
A No; I said simply, "In this house there are troubles always," and I didn,t say anything else.
Q And what did your husband say?
A My husband said, "There are no troubles in this house, and your brother is a drunkard."
234
F-2
Q And what did you say to your hushand, the defendant, when he said that?
A And I said,"No; my brother isn't drunk."
Q Now, after you said, "No; my brother isn't drunk,"
what happened?
A My brother knocked at the door strongly
(illustrating) and he said, "Open the door, Angelina".
Q Now, when you heard your brother knocking at hte door,
or when you heard someone knocking at the door, and you heard your brother's voice, where were you?
A I was standing in
front of the bed of my husband, at the bed of my husband.
Q And where was the defendant?
A In bed.
Q And he was Undressed; was he?
A Underssed.
Q And where did he undress? In the bedroom?
A Yes;
in the bedroom.
Q And what did you do, when you heard the noise of the knocking at hte door?
A I was opening the door.
MR. LE BARBIER: Now, was it, "I was opening the door," or, "opened the door"?
THE INTERPRETER: I translated it, and the
Stenographer, I presume, has it down. (The Stenographer repeats the answer.) BY MR. ELY:
Q Now, what did your brother say as he knocked at the
235
door?
A "Open, open, Angelina."
Q And what did you do?
A I went to open the door.
Q Now what else did your brother say?
A Behind the door, he didn't say anything more.
Q Well, when you opened the door, did your brother say anything?
A He entered and pleced himself in front of the bedroom door.
Q I know. But I ask you what else the deceased said,
at the time he was knocking at the door, or at the time you opened the door?
A When he had entered, he addressed my husband with the words, "You dastard fellow, do you think I am drunk?" (Illustrating)
Q Now, didn't your brother say anything else, at the
time he was knocking at the door, that you now recollect?
A He didn't say anything else behind the door. He said the words that I just referred to.
Q Now, do you remember, for the purpose of refreshing your recollection, did you state, on the 1st day of August,1906,
at the District Attorney's office: "And I heard my brother's voice say, 'Open, open. I'll tell him I'm not drunk. I only came to reason with him.' I then opened the door and my brother came in."
MR. LE BARBIER: Objected to, as incompetent,
236
F-4
irrelevant and immterial, as indefinite and leading. THE COURT: Overruled.
MR. LE BARBIER: Exception.
A No; he didn't say anything about reasoning. BY MR. ELY:
Q Well, didn't he say the rest?
A He said, "Open. open, Angelina." Inside the house he said, "I want to show him that I am not drunk."
Q Now, when your brother came in, where was your husband, when he came into the kitchen, after you had opened the door; where was your husband?
A My husband was in the bedroom.
Q And when your brother had said those words, what did
your hushand do?
A My husband said that he didn't want to be insulted, and that he should go on his business, after his business.
MR. ELY: I ask to have that stricken out, and to have my question repeated. I asked for no conversation.
MR. LE BARBIER: Objected to. BY MR. ELY:
Q I asked you--
THE COURT: I will strike out the answer, as irresponsive.
MR. LE BARBIER: Exception.
237
F-5
THE COURT: Repeat the question.
(The qeustion is repeated by the Stenographer.)
A My husband had got up from the bed, and remained by the bed.
BY MR. ELY:
Q Now, is your memory on the subject of where your husband was-- I will withdraw that. Now, for the purpose of refreshing your recollection, did you state at the District Attorney's
office, on the 1st of August, 1906: "My hushand then left the bedroom, adn come into the kitchen"?
MR. LE BARBIER: Objected to, as incompetent, immaterial and irrelevant, and improper, and in- definite and leading.
THE COURT: Overruled.
MR. LA BARBIER: Exception. BY MR. ELY:
Q After your brother had made this remark, at the door? Now please answer that yes or no.
A No; I didn't say that.
Q And did you then say, "My brother then addressed my
husband, in the kitchen, and asked him, 'Am I drunk? Do you think I am drunk'"? Now yes or no to that.
A He said that
in the bedroom, and not in the kitchen.
Q Now who said that in the bedroom?
A What and who said that?
238
F-6
Q I am asking you.
A But about what talk?
Q Now, we'll drop all that for a minute. When your
brother came in he came into the kitchen, did he not, after knocking at the door, adn making some remark at the door; you opened the door and your brother come into the kitchen, did he not? Yes orno.
MR. LE BARBIER: I object to that, on the ground that that is not the testimony. I object to it on
the ground that it is incompetent, and because
the witness has said that when the brother came in, he went into the husband's bedroom.
MR. ELY: That absolutely false, and counsel knows it.
MR. LE BARBIER: And objected to on the ground that the District Attorney has no right to come forward here, your Honor, with some sort of
a statement, which, apparently, is false, according to this witness, and present leading questions to the witness. Now, I strenuously object.
THE COURT: Whether or not a leading question shall be put, is within the discretion of the Court.
I will overrule your objection. MR. LE BARBIER: Exception.
239
F-7
MR. ELY: And I will have my last question
repeated, and will your Honor kindly ask the witness to answer yes or no? It calls for categorical
answer; and, if possible for the witness to answer in that way, I submit it should be answered.
THE COURT: Tell the witness to answer yes or
no, if possible; and then repeat the question to her. (It is repeated by the Stenofrapher.)
A No.
BY MR. ELY:
Q Did your brother come into the kitchen at all?
A He entered, and went through the kitchen into the bedroom.
Q Did he go into the bedroom at any time, on that night, after he had come back the second time, Mrs. Calandra?
A Yes, sir.
Q Your brother did?
A Yes, sir.
Q Didn't you tell me yourself that your brother didn't
go into the bedroom at any time; that all he did was to go towards the threshold of the bedroom door.
MR. LE BARBIER: Objected to, on the ground that it is incompetent, immaterial and irrelevant;
the District Attorney connot impeach his own witness. THE COURT: The objection is overruled.
240
F-8
MR. LE BARBIER: Exception.
A Because I didn,t want to tell you; and That I want to tell, I want to tell you in the presence of the Judge.
Q And didn't you make the statement to me, that your
brother didn't go into the bedroom at all, when this gentleman-- stand up Mr. Howe-- was present in the same room, and your sister, Mrs. Filoramo, was present?
A Well, yes; but I,
in that moment, hadn't all my freedom of mind. Now, I have
my serene mind, and I want to say everything as it was before the Corut.
Q All right. Now, have you ever seen this article before (indicating People's Exhibit 3)?
A This is the revolver of my husband.
Q And for how long a time have you known that revolver ot have been that of your husband?
A From the first day when I married him.
Q And have you seen that revolver, practically, every day since you have married him, up to the 20th of July, 1906?
A I saw it up to the 19th of July.
Q Yes. And do you know, as a fact, whether or not your husband carried that revolver?
MR. LE BARBIER: Objected to, as immaterial, your Honor.
THE COURT: Allowed.
241
MR. LE BARBIER: Exception.
A Yes; he carried it because, as a business man-- MR. ELY: I object to any reason, and ask to
have everything stricken out after the words "Yes, sir."
MR. LE BARBIER: I object. IfThe question is allowed I think the whole answer should come out. THE COURT: I will hear the complete answer.
A (Answer continued) Because he was a business man, and carried too much money, and was out much during the night. MR. LE BARBIER: I object to everything after
"yes, sir" and I ask to have all the rest of the answer stricken out.
THE COURT: I will allow it. BY MR. ELY:
Q And he used to carry this revolver with him, every day, to your knowledge; didn't he?
A Yes, sir.
Q Now, where did he use to carry the revolver, if you
know?
A ..e was carrying it because he was a business man, in the left hip pocket: in the left back hip pocket. (Indi-
cating.)
Q And that was because he was a business man?
A Yes, sir.
242
Q And you didn't see the revolver on the night of the
20th of July?
MR. LE BARBIER: I object to the question, because it is foolish. And I understood the interpreter to say that it was because he was a cripple.
THE COURT: Strike out from the record, "because he was a business man," the remark of Mr. Ely. MR. ELY: Yes; but that's what the interpreter
said.
THE COURT: I referm to your remark, after the answer was given to the interpreter, and that I
strike out. When you asked the question, you made that remark. That's what I strike out.
BY ME. ELY:
Q Now, you say that your husband undressed in the bed- room, on the night of JUly 20th,,1906; do you?
A Sure.
Q Now, did you see the revolver at any time on the night of the 20th of July, 1906?
A No.
Q Didn't you go around to the station house, the police precinct station house, on the night of the 20th of July, 1906? MR. LE BARBIER: Objected to, as leading. I
suggest that he shouldn't lead the witness. THE COURT: Overruled.
243
MR. LE BARBIER: Exception.
A I was.
Q And didn't you see the revolver there, at the station house, when you went there, on that night?
A Yes, sir.
Q Well, then, you did see the revolver, on the night
of the 20th of July, 1906; didn't you?
A Yes, sir; but I
saw it in the station house, when the policemen had the satchel.
Q Had what?
A A Satchel.
Q Had a satchel?
A Yes, sir.
Q And you saw this revolver, People's Exhibit 3,
at the police station, on the night in question; didn't you?
A Yes; This pistol (indicating).
Q NOw, when did you last see this revolver, before you saw it at the police station, on the 20th of July,
1906?
A On the 19th of July.
Q At what time?
A At 1 o'clock at night.
Q Well, that is 1 o'clock on the morning of the 20th;
that's what you mean; don't you?
A Yes; becouse 1 o'clock is alreaddy the 20th.
Q Well, that's what I am asking you. And it was at 1 o'clock on the morning of the 20th? And you saw that revolver, People's Exhibit 3, in whose possession?
A I saw my husband taking it from the bureau, and putting it in his pocket.
244
Q Now, what were you doing at the time that your bro-
ther was talking with your husband, after he had come back?
A Well, I busied myself with the things that were on the ta- ble, as there were a great many other things in the kitchen.
Q Well, what do you mean? Were you cleaning off the kitchen table?
A Yes; I took away some of the glasses and other things that were there, and put it on the washtub.
Q Now, who were in the kitchen then?
A I was alone.
Q What's that?
A I was alone; I alone.
Q Didn't you tell me that your brother was in the kitch-
en, at that time, in the presence of Mr Howe and your sister; and didn't you say that in my office, three or four days ago, when I was asking you what your testimony in this case would be?
ME. LeBARBIER: Objected to as immaterial, ir- relevant and incompetent, and improper and indefinite, and also upon the ground that the District Attorney cannot impeach, or seek to impeach, his own witness. THE COURT: The rule is that the District Attor-
ney cannot impeach, that is, show the bad character fortruth and veracity of a witness is called. But
the rule does not prevent his showing that any wit- ness that he calls is mistaken or does not recall dis-
245
tinctly. Therefore, I will overrule the objection. MR. LeBARBIER: Exception.
A I didn't say that he was in the kitchen. I said that he was just in the center of the door.
Q Well, but did you, at any time, say that your brother was in your husband's or your bedroom?
A I said that he was in the center of the door, and what I have to say I want to say it before the Judge.
Q Well, I know. But didn't you, as matter of fact, tell
me, in the presence of Mr Howe and your sister, when I was asking you to tell me the facts of the case, that your brother-- MR. LeBARBIER:" i submit that that is improper,
if your Honor please.
MR. ELY: I haven't got through with my question. THE COURT: Well, I cannot rule until there is something before me to rule upon.
MR. LeBARBIER: Well, as far as it goes, I object. It is apparent what the District Attorney is saying. He is narrating and seeking--
THE COURT: Mr LeBarbier, if you will wait
until his question is finished, then I will entertain your objection. I very often determine in my mind how I will rule upon a question, before it is com- plete, only to find that I was entirely wrong in my
246
apprehension of what was said. I cannot properly rule until a question is before me. Go on and finish the question, and I will then rule.
MR. LeBARBIER: Pardon me, your Honor, I object. THE COURT: Overruled, at this time.
MR. LEbARBIER: Exception. BY MR. ELY:
Q (Question continued:) no time went into the bed-
room of your husband, after you had admitted him, when he had the conversation relative to his condition?
A No; he enter-
ed in the bedroom.
Q Well, that's not the question. I am asking you if you didn't tell me that he didn't enter at all. I asked you if it
was not the fact that you had told me, when I was interrogat- ing as to your testimony in the case, at my office, upstairs, two or three days ago.in the presence of this gentleman, Mr Howe (indicating), and in the presence of your sister (indi- cating), that your brother didn't enter the bedroom of your
husband, after he had been admitted by you, a second time, on the evening of the 23th of July, 1906?
A Yes; because my
head was not in the proper shape at that moment; and now I
am serene, and I want to tell the things as they are
Q All right, Now, didn't you tell me at the same time
247
that your brother was in the kitchen, when you were cleaning off the table in the kitchen?
A No, no.
Q All right. Now, did you hear any shots fired on the evening of the 20th of July, 1906?
A First, I heard--
Q Now, please. I asked that question, and it calls
for yes or no. Did you hear any shots on the evening of the 20th of July, 1906?
A I don't want to talk now about the shots, if I heard any; because I went to tell the whole affair, with other circumstances.
THE COURT: Say to the witness, that she must answer the question that are asked, and whenever possible, answer them by yes or no.
A (Answer continued:) And if it is not correct to give
an answer, without stating something particular before, how can I give such an incorrect answer?
THE COURT: No; answer the question. Ask the question, Mr Ely.
Q Now, did you hear any shots on the evening of the
20th of July 1906?
THE COURT: Now, yes or no.
A Yes, sir.
BY MR. ELY:
Q Now, where were those shots fired?
A From the win-
248
dow of the kitchen.
Q Well were they fired in the kitchen?
A Yes, sir.
Q Now, when you heard the shots fired, what did you see?
A I saw that they were clinched this way (illustrating) and my brother was pushing my husband against the window.
Q Now, did you see what hand--did you see how your brother held his hands?
A I can't say now, because you don't allow me to talk as I ought to talk in this behalf.
Q In his behalf?
MR. LeBARBIER: No. In this behalf, she said. BY MR. ELY:
Q Did you see how your brother held his hands, at the time of this struggle, as you have described it?
MR. LeBARBIER: The District Attorney, at the conclusion of the last question, stated audibly,"In his behalf." I understood from the interpreter it was "In this behlaf" I would like to know from
your Honor whether the interpreter may be asked whether the words "In this behalf" were not the words used by the witness.
THE COURT: Yes. Mr Interpreter, tell us what the witness said.
THE INTERPRETER: Well, I don't remember it
249
distinctly now. The Stenographer must have wrote it donw.
(It is repeated by the Stenographer.) MR. ELY: Is it "In this behalf"?
THE INTERPRETER: Yes.
MR. LeBARBIER: And may I ask your Honor to instruct the jury to disregard the remark of the Dis- trict Attorney?
MR. ELY: I unite in that request. I misunder- stood it.
THE COURT: Very well, strike it out. Strike
out the remark of the District Attorney, the jury will disregard it.
BY MR. ELY:
Q (Question repeated.)
A No.
Q Now, on the 1st of August, 1906, at the District At-
torney's office, did you say, under oath: "My brother held my husband's right hand, and was trying to force it down. My husband was near the window. My brother was near the stove."? MR. LeBARBIER: Objected to on the ground--
A Yes.
MR. LeBARBIER: I move that the answer be stricken out.
250
THE CORUT: No; I will overrule your objection. MR. LeBARBIER: Exception.
BY MR. ELY:
Q Now, did you also state: "While they were struggling,
I heard glass breaking. The window was smashad. I didn't see the revolver until I went to the station house"?
A Yes,
I said so. I said that they were struggling, that the window broke, while they were knocking against the window, and that I saw the revolver in the station house.
MR. LeBARBIER: Now, for the information of
the Court, may it please your Honor, I ask the Inter- preter, didn't the witness just say, "My husband was
--in the last question that the witness answered did she say, among other things, that, in the struggle, "While my brother was pushing my husband to the win- dow"? Weren't those words said by the witness, as
part of her last answer? I address myself to the
Interpreter there, your Honor.
251
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THE COURT: Can't you answer the question? THE INTERPRETER: She said so, the first time, and, the second time, she related the struggle, the knocking against the window, the crash of the glass, and seeing the revolver at the station house.
And that her brother was pushing her husband towards the window. She said that, the first time, and then
she went on again.
MR. ELY: No; but did you correctly interpret that?
THE INTERPRETER: I did. BY MR. ELY:
Q Now, at this time, did you see anything on your brother's body?
A In what time?
Q Well, the time that we were just speaking of?
A Oh,
I was in a state of convulsions, and I can't say what I saw, or what I didn't see; and, when I want to talk, they don't allow me to talk.
Q Well, for the purpose of refreshing your memory, did you, on the 1st of August, 1906, under oath, at the District Attorney's office, say: "I screamed and creid for help, and
I saw that my brother was afire over the stomach. I said,
to him, 'What is that?
A cigar?' and he said, 'No; I'm shot.'"
252
F-2
A Yes, sir.
Q Now, after that, what did your brother do?
A He went out into the hall.
Q And did you--
A Well, but you didn't let me talk what exactly I had to say.
Q Well, just answer my questions, please. Your brother then went out in the hallway; did he?
A Yes, sir.
Q And what did you see, when he went out in the hall?
A I didn,t see what was in the hall-- what he did in the hall-- but, before, when I saw the fire on his stomach, I said, "What's the matter there? Is it a cigar." And he said, "No; I've
been shot."
Q Yes. Now, that's all right. Do you remember saying,
on the 1st of August, for the purpose of refreshing your memeoey, the 1st of August, 1906, under oath, at the District Attorney's office: "My brother, he walked into the hall. He fell at the
head of the stairs"?
A I didn't say that he fell.
Q Now, how many shots did you hear in the kitchen?
A Two.
Q Didn't you hear more than two? Didn't you hear three?
A Two.
Q Do you know who shot those shots?
A I don,t know anythi ng.
253
F-3
Q Did you see a revolver in your brother's hands, at any time on the night of the 20th of July, 1906?
A I didn,t
see proparly, at all, that revolver in my house. MR. ELY: Now, I ask to have that stricken out, and the question repeated.
THE COURT: Strike it out.
MR. LE BARBIER: I object to it, on the ground that it is a proper answer and competent.
THE COURT: Repeat the question. MR. LE BARBIER: Exception.
(The question is repeated by the Steongrapher.)
A No.
MR. LE BARBIER: Did you Honor strike out the answer of the witness?
THE COURT: I struck out the answer and repeated the question, and the answer is, no.
MR. LE BARBIER: Exception. BY MR. ELY:
Q NOW did you see a pistol in the hands of your husband,
the defendant, at any time on the night of the 20th of July,1906?
A No.
Q Now, at the time of the shooting which, as you say,
took place in the kitchen, who, if anybody else, was in the
254
F-4
kitchen? except yourself, your husband and the defendant-- ex- cept yourself, the defendant and your brother?
A Nobody
else.
Q Did you do any shooting, on that night?
A No,
Q Did you have any pistol or any weapon of that kind on you that night?
A I had nothing.
Q Now were you in the hall at the time your brother fell in the hall?
A NO.
Q Now, what were you doing at the time your brother fell, at the held of the stairs, in the hall?
A I remained in the kitchen, because I was the prey of an attack of convulsions, and remained in the kitchen after that.
Q Now, did you say, under oath, on the 1st of August,
1906: "I was very much nervous and excited, running back and forth from the spot where my brother laysto the kitchen"?
A I don't remember.
Q Well, wasn't that the fact?
A Well, in that moment,
my head wasn't all right, and I was just talking like a senseless person.
Q In what moment?
A When I talked, because I had lost
a brother, my husband convicted, my house in ruin; and, there- fore, I couldn't have all my mind on it.
Q Well, I know, but I am asking you if that wasn't the
255
F-5
fact, namely, that you were running about, to and fro, between the kitchen and where your brother lay, in the hall, on the
night of the 20th of July, 1906. I'm not asking about your mind of anything else. I am asking you for the fact?
A I
can't remember. There was the door of the American woman open.
Q Now, do you remember Officer Tarpey? Come up here, Tarpey.
A This gentleman here, yes.
BY MR. ELY:
Q Do you know that man? (Indicating Officer Tarpey.)
A Yes, sir.
Q Who is he?
A The policeman who came to my house.
Q Well, who came to your house on the 20th of July, 1906?
A Yes, sir.
Q Now, did he ask you who did the shooting? Yes or no, please?
A He didn't know how to talk English.
Q Now, Please, didn,t this officer ask you who did the shooting?
A Well, but if I don't understand English, how can I know whether he asked me or not?
Q Well, you understand English somewhat, do you not?
A I don't understand anything at all.
Q Why, you have answered some questions here in English,
256
to-day.
A Well, what answer did I give in English? Do you call it to talk in English, when a person says, yes?
Q Well, I won,t enter a discussion with you on that subject. You saw this officer, on the 20th of July, 1906; didn't you?
A Yes; I saw him in my house.
Q And that was after the shooting; wasn't it?
A Yes, sir.
Q And this officer asked you a question; didn't he?
A No.
Q You say, Mrs. Calandra, that you don't understand any
English at all, now?
A (No answer.)
(The witness looked at the Interpreter, and he interpreted the question.)
A I don't understand English, any English at all.
Q But you did understand then, that I was asking a question; didn't you?
A Well, of course, if a person looks in the face of another, and addresses her, that is a question.
Q Well, didn't Tarpey look at you in your face, and
talk to you, when he went into your house, on the night of
257
the 20th of July, 1906, after the shooting?
A No.
Q Why, when Tarpey came in, you and your husband, the defendant, were the only people in the house; wern't
you?
A Yes, sir.
Q And you were in the kitchen, weren't you, and your husband was in the bed room, sitting on the bed; wasn't he?
A My husband also was in the kitchen.
Q You swear that is so; do you?
MR. LE BARBIER: She is under oath, and I
object to the question, as foolish.
THE COURT: I will sustain the objection to the question.
BY MR. ELY:
Q Well, you recognize, Mrs. Calandra, that you are under oath; do you not?
MR. LE BARBIER: Objected to , as incompetent. THE COURT: she may asswerthe question.
MR. LE BARBIER: Exception.
258
A Of course, I know I am talking under oath. BY MR. LeBARBIER:
Q And you recollect that you have taken an oath to tell
the truth, the whole truth, and nothing but the truth; do you not?
A Of course; it is the truth.
Q Now, when Tarpey came into your room, after the shoot- ing, on the evening of the 20th of July, 1906, did you go into the bedroom, and point your husband out to him? (Illus- trating.)
A No. When my husband--when the officer came, my husband was in the kitchen.
Q Well, did you point your husband out to the officer?
A No.
Q Your recollection on that point is fresh, so that you are not in any doubt on the subject?
A No, I did not.
Q Now, did you say, in the presence of the officer, as
you were walking up and down the room, what for you kill my brother? What for you shoot my brother?" in broken English?
A No.
Q Did you ever say those words at all to the defendant, or in the presence of the defendant?
A No, no.
Q Now, Madam Calandra, didn't you, on or about the 28th of
259
June, 1906, complain to Celia manjanara's family of the intim- acy between your husband and Celia Manjanara?
MR. LeBARBIER: Objected to as immaterial, irrelevant and incompetent.
THE COURT: She may answer. MR. LeBARBIER: Exception.
A I didn't complain, only I was a little jealous; that is all.
MR. LeBARBIER: Now, I move that that be stricken out, may it please your Honor, on the ground that it is incompetent.
THE COURT: Yes. Strike that out. BY MR. ELY:
Q Now, didn't you tell your husband--withdrawn. Now,
didn't you and your husband have words over the fact that you did complain to the family of Celia Manjanara about his rela- tions with her?
MR. LeBARBIER: Objected to on the ground that
it is incompetent, and in no way connected with any- thing in this case.
THE COURT: I will receive it. MR. LeBARBIER: Exception.
A Yes.
260
BY MR. ELY:
Q And didn't he tell you--
MR. LeBARBIER: I move that the answer be stricken out, as incompetent.
THE COURT: No; I will let it stand. MR. LeBARBIER: Exception.
BY MR. ELY:
Q And didn't he tell you on that account, because of your complaining to Celia Manjanara's family, that he wouldn't live with you, and did then absent himself from you?
A No; he didn't absent himself from me.
Q Why, isn't it a fact that, for about four weeks before
the 15th of July, 1906, you and your husband were not living together?
MR. LeBARBIER: Objected to, as immaterial, ir- relevant and invompetent.
THE COURT: Overruled.
MR. LeBARBIER: Exception.
A But he came every week to visit me. BY MR. ELY:
Q Won't you answer the question?
(The question is repeated by the Stenographer.)
A Yes; but he didn't go away on acount of Celia. He
261
went away because I had a quarrel with him.
Q Now, didn't you say on the 1st of August, 1906, under oath, at the District Attorney's office: "This girl was the cause of all, and the ruin of peace of the household. Then
my husband afterwards, with me, absented himself for about a month. Just before he left home, I had some words with him, and he said, 'You are all the time complaining about this
girl. Before you break up the house, I'll break it up. I'll leave.' I reply, 'Very well; you can take the bookkeeper, and I will attend to my business That was in June last"? MR. LeBARBIER: Now, I object to that, as in- competent, and on the ground that this is directly
under the authorities as to impeaching a witness, who is proffered here for truth and veracity.
THE COURT: I take it this is all produced for the prupose of showing motive?
MR. ELY: Certainly.
THE COURT: It seems to me competent.
MR. LeBARBIER: I don't see under what rule, your Honor; and, if you will permit me, I will sub- mit an authority after recess, if I can send to my office.
MR. ELY: Well, why not take the adjournment
262
now? It is one o'clock. Will you tell the witness please not to converse with any one?
THE COURT: Yes; I so instruct the witness. Gentlemen of the jury, do not talk about this case, or permit anyone to talk to you about it, or
from or express any opinion thereon, until the case shall be finally submitted to you.
Be here promptly at 2 o'clock.
263
AFTER RECESS.
ANGELINA CALANDRA, her direct examination being continued, testified as follows:
DIRECT EXAMINATION CONTINUED BY MR. ELY:
Q (The last question is repeated.)
MR. LeBARBIER: Objected to. THE COURT: Allowed.
MR. LeBARBIER: Exception.
A I said that, yes, to the District Attorney, but just because I was jealous; that's all.
BY MR. ELY:
Q Now, did you say, also, at the same time and place, under oath: "Through the solicitation of my brother and friends, my husband came back again to live with me:? MR. LeBARBIER: Objected to, as incompetent, immaterial, irrelevant, and not in the presence of
the defendant.
MR. ELY: It is a fact. What is the answer? THE COURT: You may inquire as to the fact, of course.
264
MR. LeBARBIER: Exception.
A Yes, sir.
BY MR. ELY:
Q Now, did you at the time that you made this statement,
on the 1st day of August, 1906, under oath, at the District At- torney's office, say: "I can't say anything against my hus- band or against my brother, and the cause of all the troule was that girl. I have told nothing but the truth, and every- thing I know"?
MR. LeBARBIER: Objected to, as incompetent, immaterial and irrelevant.
THE COURT: Objection sustained. BY MR. ELY:
Q Now, Mrs Calandra, do you know this man here (indi- cating Mr Rooney)?
A Yes, sir.
Q And you spoke to him just before the opening of court, and said to him in English, "I give my jacket and umbrella to my sister"; did you not?
MR. LeBARBIER: Objected to, as incompetent, immaterial and irrelevant, and not in the presence of the defendant.
A Yes.
THE COURT: I will sustain the objection.
265
MR. LeBARBIER: I move that the answer be strick- en out.
THE COURT: Yes.
CROSS ECAMINATION BY MR. LeBARBIER:
Q Why was it you said you were jealous, Mrs Calandra? MR. ELY: I object to that.
THE COURT: She may answer.
A Because she was a friend of the family, and, since long, didn't come any more.
Q Isn't it a fact, Mrs Calandra, that this so-called
jeslousy that you speak of you learned from some clairvoyant, or fortune teller?
MR. ELY: I object to that.
THE COURT: Oh, I sustain the objection.
MR. LeBARBIER: We propose to connect that. We propose to show that, consulting generally a fortune teller, the fortune teller told her beware
of some lady.
THE COURT: No, I sustain the objection. We are getting along way from the issue.
MR. LeBARBIER: Exception. BY MR. LeBARBEIR:
Q While the defendant was away from you temporarily, as
266
you say, did he support you?
MR. ELY: Objected to, as immaterial. THE COURT: She may answer that.
A Always. He never allowed me to miss--to feel any lack of money.
BY MR. LeBARBIER:
Q Did I understand you to say that the reason of your
not being together, at the time that you were asked about, was because of some quarrel between you two?
MR. ELY: I object to that, because that is not the testimony that has been given.
BY THE COURT:
Q What is the fact?
THE COURT: Ask her what is the fact; not what she said, because the record shows that. BY MR. LeBARBIER:
Q What waa the reason, if any, Mrs Calandra, why you and
your husband were not together for some time?
A Because, the nightbefore, I did something that he didn't like. I told him
to--I said something that he didn't like; and, on the fol-
lowing morning, he came to me, and wanted to kiss me, and I
refused, and was angry, and then he says, "Well, I go," and so he left.
267
Q Was there any real cause for you two being apart? MR. ELY: I object to that.
BY MR. LeBARBIER:
Q If any?
MR. ELY: Objected to.
THE COURT: She may answer.
A No reason, no real reason at all. It was just a quar- rel, a family quarrel on things of the house.
Q How long before the 20th day of JUly was it that you come together?
A It was on a Sunday.
Q Well, domyod recall about the date when it was?
A No; I don't remember the date.
Q Was it two or three weeks before the 20th, or a month, or how much time?
A Four weeks he was absent.
Q No. How long before the 20th of July was it that you were living together again, after this absence, you know?
A Five days.
Q You were living happily those five days? MR. ELY: I object to that.
THE COURT: She answer.
A Yes, sir.
BY MR. LeBARBIER:
Q Was there any question between you and your husband,
268
during those five days, that you were living together, prior to July 20th, 1906, of Celia Manjanara?
A Nothing at
all.
Q To your knowledge, was this occurrence that re- sulted in the shooting by reason of any quarrel between
Joseph Ciofolo and your husband, as to Celia Manjanara being the cause?
269
F-1
MR. ELY: Objected to. THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Did Celia Manjanara have anything to do with the
troubel on the night of the 20th of July, 1906?
A Nothing at all.
Q When your brother came in, that night, and you said, "First, we offered our brother some food, and he refused to accept," what did your brother do?
A He engaged in some little conversation with the friends, and then he left.
Q Was it before he left that the defendant said,
"Let's have a glass for health"?
A glass of drink?
A Yes;
and it was before; and all the persons and my brother himself drunk.
Q Joined in the drink?
A Yes, sir; joined in the drink.
MR. ELY: Well, can't we have the interpreter,
now, instead of Le Barbier, counsel for the defense? THE COURT: Yes; do not interrupt. Let the interpreter give the interpretation. Proceed
please.
BY MR. LE BARBIER:
Q How long was it after that your brother started--
270
F-2
that your brother went out?
A Well, it might have elapsed eight or ten minutes; I can't exactly recall.
Q Before your brother went out, that time, did your
husband say to him, "We'll talk this matter over in the morning," or words to that effect?
MR. ELY: I object to that. No; I will not object to it. I will withdraw the objection.
A I don't remember. I hadn't any mind to such little things.
BY MR. LE BARBIER:
Q If I understand you correctly, something was said in
English?
A Yes; the talk was in English.
Q Be that as it may, how long did your brother remain
outside, before he came and knocked at the door?
A Some ten minutes.
Q When he said these words, "Open, Angelina," what
did your husband say to you, if anything?
A My husband said, "No, no," but I was in a state of embarrassment between what my husband said and between my brother, who was outside.
Q And did your husband say not to open the door?
MR. ELY: I object, if your Honor please. In
the first place this conversation is incompetent.
I made no onjection befoer, but I make the objection not.
271
F-3
MR. LE BARBIER: It is the res gestae. MR. ELY: NO; it is a declaration--
it purports to be a declaration of the defendant, and it is in the nature of testimony in his own be- half, that it is not possible to contradict; and it
is improper under the case of the People against
Real.
MR. LE BARBIER: It is the cross ecamination of a hostile witness.
MR. ELY: I object to that suggestion. I think
it has been manifest, from the demeanor of the witness on the stand, and the testimony that has been
adduced from the witness, that the witness is a wit- ness adverse to the People.
THE CORUT: I sustain the objection. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q Now, when your brother was saying, "Open, open, Angelina," and your husband was saying, "No," what else did you hear?
A I didn,t hear anything else. I opened the door, and my brother came in.
Q Did he come in quickly?
A Yes; he came in rather angrily.
272
F-4
MR. ELYL: Now, I object to "rather angrily" and ask to have it stricken out.
THE COURT: Objection sustained. Strike out, "rather angrily".
MR. LE BARBIER: Exception. BY MR. LE BARIBIER:
Q When he came into the door there, what did he say?
A "You dastard fellow that you are, do you think that I am drunk?" (Illustrating.)
Q And when he said that, what did he do?
A And then
he grabbed hold of my husband, this way (illustrating), to strangle him; and he said, "This night will end it, and, if you don't stop I am not afraid of you, and I'll take the revolver."
Q What is that?
A "If you don't stop that, to night,
I am apt to make an end of it, to night, even with thine revolver. I am not afraid of thee."
Q When this was said, where was your brother?
A In the bedroom.
Q What then was said by either party?
A They talked then in English. My borther continued to wrangle with my husband, and pushed him against the window.
Q No, I'm talking of the bedroom.
273
F-5
MR. ELY: Well, all right, if your Honor please.
I object to counsel prompting the witness now. She seems to be getting on well enough.
THE COURT: There is nothing before me now,
Mr. District Attorney, no question whatever. Go on, Mr. Le Barbier.
BY MR. LE BARBIER:
Q Did you see your brother do anything to the defendant, in the bedroom?
A He grabbed hold of my husband; they struggled together; and then my brother pushed my husband.
Q Did your brother grab hold of the defendant, before
your husband did anything?
MR. ELY: I Object to the form of the question. THE COURT: I will sustain the objection.
You may ask what was done, and what was done first, if you wish.
BY MR. LE BARBIER:
Q Is that the first thing that your brother did, to seize hold of your husband?
MR. ELY: I object to that. I object to the question in that form.
MR. LE BARBIER: She has said that, or leading up to it.
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BY THE COURT:
Q What did your brother do first?
A The thing first
that he did was to say, "You dastard fellow, do you think that
I am drunk?"
BY MR. LE BARBEIR:
Q And what did your brother do, if anything, by way of seizing hold of your husband?
I am drunk?"
BY MR. LE BARBIER:
Q And what did your brother do, if anything, by way of seizing hold of your husband?
MR. ELY: Now, I object to that.
THE COURT: She may answer that. It may be leading.
A My brother entered, and took hold of my husband thus
(illustrating).
BY MR. LE BARBIER:
Q Was that in the bedroom?
A Not in the bedroom. (Speaking in English.)
BY MR. ELY:
Q Not in the bedroom, eh?
A (The witness replies to
the interpreter.) Not in the bedroom. In the sleeping room. BY MR. LE BARBIER:
Q When he did this to your brother, in the bedroom, that was the next thing that took place?
A They both remained holing each other, and went into the kitchen.
Q Yes. Were they holding each other when they went into the kitchen?
MR. ELY: Objected to. He has just said that.
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THE COURT: Sustained. She has just made that answer.
MR. LE BARBIER: Question withdrawn, then. BY MR. LE BARBIER:
Q Were they holding each other, coming out of the bedroom? MR. ELY: Objected to. It has already been
testified to.
THE COURT: Yes.
MR. LE BARBIER: Question withdrawn. BY MR. LE BARBIER:
Q When they went into the kitchen, were they both holding one another?
THE COURT: That has been answered.
MR. LE BARBIER: Well, question withdrawn.
I want to show that they kept it up in the kitchen. BY THE COURT:
Q How long did they remain clinched?
A It might have been some ten minutes.
Q Where?
A In the kitchen; from the bedroom they turned into the kitchen.
THE COURT: Now I think you have it definitely. BY MR. LE BARBIER:
Q Now, pardon me just a minute. When they came into
276
the kitchen-- question withdrawn. Please look at that diagram, and see if you understand it. (Indicating the diagram in evidence.)
A This I don't understand, at all, because I
am not versed in drawinge.
Q Well, when they were in the kitchen, did they remain
in the same spot or move about?
A They turned around together, until they reached the window, and the window crashed.
Q Who was up against the window, at the time it crashed?
A My husband.
Q And was your brother pushing him up against the window? MR. ELY: One minute. I object to the question
in the form.
THE COURT: Don't lead.
MR. LE BARBIER: That is the fact, your honor. THE CORUT: No, no; you must not state what the fact was.
BY THE COURT:
Q What was your brother doing?
A My brother pushed my husband against the window, until the window broke.
BY MR. LE BARBIER:
Q What happened then?
A Then there were two reports of a revolver. I fell into a convulsion, and I don't
know anything else.
277
Q Was there a table in the kitchen?
A Yes, sir.
Q When I say kitchen, I mean the living room, what is called the living room, the kitchen. How about that table? Was it in its place, or turned over, or what?
A It came against the washtub, and I was there, too.
Q Did anything fall off of the table?
A Yes, sir; glasses and bottles.
Q Had the glasses and bottles, which you say fell
off the table-- had these glasses and bottles fallen off the table before the two reached the window, which you say was broken?
A While they were turning, they struck against the table, and then the glasses fell, and bottles fell.
Q Was that before they reached the window?
A Well, they were just shuffling and going towards the window.
Q Going towards what?
A Going towards the window.
278
Q Were they shuffling or were they fighting? MR. ELY: I object to that, if your Honor please.
THE CORUT: she may answer that.
MR. ELY: That is a conclusion of the witness. Why don't she tell what they were doing actually.
A Well, when I say shuffling, I mean with the foot, moving about with the feet.
MR. ELY: Is that the answer fo the witness or your answer?
THE INTERPRETER: It is her answer. It is separate from fighting; shuffling the feet is different from fighting.
THE COURT: Now, I will sustain the objection, because the interpretation of the interpreter now
puts a different aspect on the matter. You may repeat the question.
BY MR. LE BARBIER:
Q At the time that you say they were going around in the kitchen, in the way you have described, after coming out of the bedroom, were they still holding each other?
MR. ELY: Objected to. That has been several times specified to by the witness, on this examination.
279
1
THE COURT: Yes; we have had "They had hold of one another,"but, inasmuch as the matter is of such importance, we can go into it with minuteness and fullness.
MR. ELY: Why, certainly, although it has been answered three or four times, on the cross examina- tion.
THE COURT: I will allow the question.
(The question is repeated by the Stenogapher.)
A Yes; they were always holding each other, my brother always turning my husband, until he pushed him against the window,
Q Now, at that time, did you hear your husband make any outcry?
MR. ELY: Now, don't answer that question. I
object to "outcry". I don't object to the ques-
tion, "Did you hear your husband say anything?" and then to have her describe the chain of events.
THE COURT: Yes; that is open to the objection that it is leading.
MR. LeBARBIER: ALL right. BY THE COURT:
Q What, if anything, did you hear your husband say?
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2
BY MR. LeBARBIER:
Q What, if anything, did you hear your husband say?
A I couldn't understand anything, as I said, because I was in convulsions, and didn't hear well.
Q Before you went into these convulsions, madam, did you hear your husband say why your brother took hold of him?
A They talked in English, and I didn't understand.
Q Did they whisper in each other's ears, or indulge in loud talk?
MR. ELY: Oh, I object to that.
A They were talking loud.
BY MR. LeBARBIER:
Q Now, at any time during this particular occurrence, did you see any revolver in the hands of your brother?
A NO.
Q Did you see where their hands were? MR. ELY: Yes or no, that calls for, if your Honor please.
MR. LeBARBIER: I don't call for yes or no; I call for an answer to the question.
THE COURT: Now answer the question. yes or no. if possibel.
281
A Grasping each other. BY MR. LeBARBIER:
Q Grasping with what? What portion of the body of each other were they grasping?
A Both hands were grasping the other hands (illustrating).
Q Well, they had their hands grasped together, this way (illustrating)? Did you see your brother do anything with his head?
A I didn't see anything, because I was in con- vulstions.
Q How long have you known your husband?
A some twenty years.
Q Do you know other people who know him?
A My sister, my relations and friends.
Q I am now speaking of your husband? You understand that; don't you?
A Yes; my husband.
Q What is his reputation?
A Very good. And my husband always had a high respect for my family.
MR. ELY: Well, I object to hte high respect for the family.
THE COURT: Yes; that is not competent. MR. ELY: And I ask to have it stricken out. THE COURT: Yes; strike it out, as to the
high respect that her husband had for her family.
282
MR. LeBARBIET: And we except. THE COURT: Do you except to that?
MR. LeBARBIER: Yes, sir. Wel think, in a homicide case, that the lid shouldn't be held down too tight.
THE COURT: I have no discretion to very the ruled of law, at all. The rules of law as to evi-
dence must be observed as carefully in a homicide case as in any other kind of case.
MR. ELY: While I don't believe the rules of evidence should be relaxed in a homicide case, or in any kind of criminal case, if counsel thinks that statement of the withess is beneficial to her hus- band, I am perfectly willing to withdraw that objec- tion, and that motion, and it may stand.
THE COURT: Yes; by consent, it may stand. MR. LeBARBIER: Very well, then.
BY MR. LeBARBIER:
Q Prior to your husband and your brother being in that
kitchen, on that night in question, was that window pane broken?
A No.
Q Mrs Calandra, I understood you to say, in answer to
the prosecutor's. questions, that your husband was in the habit
283
of carrying a revolver.
THE CORUT: Yes; she said that.
MR. ELY: This revolver, she said; the revol- ver in evidence.
BY MR. LeBARBIER:
Q Will you kindly tell us just what you mean by that? MR. ELY: I object to that. She has very
fully told us.
THE COURT: Well, I think, Mr LeBarbier, you have got that quite sufficiently in evidence. It becomes now merely comulative testimony. I sustain the objection for that reason.
MR. LeBARBIER: Well, then, I will withdraw
that, on your Honor's suggestion. and ask this ques- tion.
BY MR. LeBARBIER:
Q Was he in the habit of carrying it every day, or only occasionally?
MR. ELY: I object. She has already tes- tified on that subject.
THE COURT: Well, answer that question, and I
think that will be sufficient on that subjet.
A When he lefe, in the morning, he always took the re- volver.
284
BY MR. LeBARBIER:
Q At what hour, generally, did your husband go to work?
A Sometimes at one o'clock, and many times at twelve o'clook.
Q Twelve o'clock at night?
A Yes, sir; always in the
middle of the night.
Q Was he a hard working man? MR. ELY: Objected to.
THE COURT: Sustained. MR.LeBARBIER: Esception. BY MR. LeBARBIER:
Q Who was it that paid for the funeral of Joseph
Ciofolo?
MR. ELY: Objected to. THE COURT: Sustained.
MR. LeBARBIER: Exception.
THE TENTH JUROR: If your Honor please, I would like to ask the witness a question, if it is proper, and, if it is improper, will your Honor cor- rect me?
BY THE TENTH JUROR:
Q To the best of your knowledge and belief, during your marriage, can you state whether your husband had a permit, a legal permit, to carry a revolver?
A I don't know.
285
THE NINTH JUROR: YOUR, I am just simply somewhat in the dark as to what the witness means by the word "convulsions", which she has used on several occasions.
THE COURT: I will take that up in a moment. BY THE COURT:
Q In your testimony, you said you had convulsions, and did not recall actually what you saw taking place. What do you mean by the term "convulsions"?
A That I fell in a swoon, and fell to the ground.
Q Do you mean that you were unconscious, and hence don't know what was taking place?
A No; I fell to the ground,
and didn't see anything more in convulsions.
Q So, have you any memory whatever as to what took place, after you say you fell to the ground?
A Nothing.
REDIRECT EXAMINATION BY MR. ELY:
Q Now, Mrs Calandra, you testified before the Coroner, didn't you, in the Coroner's Court, in August, on the 6th of August, I believe it was, 1906-- yes, the 6th of August, 1906?
A Yes, sir.
Q Now was this question asked of you: "Q Where was
your husband at the time your brother came back into the room
286
from the hallway?"
MR. LeBARBIER: Objected to on the ground that he is seeking to impeach his own witness, and be- cause it is incompetent.
THE COURT: She may answer. MR. LeBARBIER: Exception.
A I can't remember. BY MR. ELY:
Q And did you make this answre: "My brother came in the kitchen as soon as I opened the door"?
MR. ELY: And that, your Honor, of course, calls for yes or no.
THE COURT: Yes, answer yes or no, if possi- ble.
A I can't remember. BY MR. ELY:
Q Now, was this question asked you, and did yourmake this answer: "Q Now, I ask you where your brother was, at that time?
A He came out from the brdroom into the kitchen"?
A I can't remember all these things, but I should like to detail before the Judge all these things that I remember, in my own way.
Q No, the question is, was that question put to you, and
287
did you make that answer to that question, at the Coroner's
Court?
A Yes, sir.
Q And you made that answer to that question, to the ques- tion I have just asked you? (Repeat.)
A I can't remember.
Q All right, Mrs Calandra, give me again that conversa-
tion which you say you heard between the deceased and the de- fendant, at which you say that the deceased said to the defend- ant that he was going to do for him, that night, even though
the defendant had
A revolver. Just give me the words of that, again?
A It was my brother who said such things to my hus- band.
Q Well, that's what I say. Now just give exactly the
words that you say now that your brother then used?
A My bro- ther said, as he entered, "You are a dastard fellow."
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Q Well, we've gotten beyond that. We want now to get to
the point where he said he was going to do for him that night, even if he had a revolver.
A And then my husband said that he didn't want any
further insulted, and my brother said, "I think that I will make an end of it, to night, with your own revolver."
Q Oh, that's it is it? Are those the words you say your brother used that time?
A Yes, sir.
Q That he, your brother, was going to make an end of your husbdand, with your husband's own revolver, at night?
A Yes, sir; and he added, also, " Because I am not agraid."
MR. ELy: Now, please read me the previous testimony of the witness on that subject, Mr. Steno- grapher.
BY MR. ELY:
Q Now, didn't you testify a minute ago, as follows: MR. ELY: Now read that, Mr. Stenographer.
(It is read by the stenographer.)
Q That is the testimony that you gave to counsel for the defense, and that's right; is it?
A Yes.
Q Now, did you give that testimony at the Coroner's in- quest? Yes or no.
A No.
Q Why didn't you?
A Because I wanted to reserve it for
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the Judge.
Q What is that?
A Because I wanted to reserve my answer for the Judge.
Q YOu wanted to reserve that bit of testimony--
A For the Judge.
Q You wanted to reserve that bit of testimony until the case came up for trial, before the Court; is that right?
A Yes, sir.
Q And you didn't ever tell that to any member of the
District Attorney's staff either; did you?
MR. LE BARBIER: Objected to asincompetent, immaterial and irrelevant.
THE COURT: Allowed.
MR. LE BARBIER: Exception.
A I didn't say anything to anybody. BY MR. ELY:
Q Well, you were asked, weren't you, tell all the
truth, if you knew it, respecting this occurrence on the 20th of
July 1906?
MR. LE BARBIER: Objected to. Objection overruled.
MR. LE BARBIER: Objected to as incompetent. It is a conversation occurring in the absence of
290
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the defendant, and is immaterial, irrelevant and incompetent.
THE COURT: I will hear the answer. MR. LE BARBIER: Exception.
A Well, but, at that moment, my hard wasn't all right, and I was taling foolishly.
MR. ELY: Didn't the witness say, "Si," "Yes", first, Morrossi?
THE INTERPRETER: Yes.
MR. ELY: Then why didn't you translate that
"yes"? It was very important.
THE COURT: Now, if the witness said "Yes", that should be a part of the translation.
THE INTERPRETER: Well, I said "well," which is the same as "Yes".
MR. ELY: I Thought "si" was "Yes".
THE INTERPRETER: Yes; and, also, "well". MR. ELY: I want the question repeated. if your Honor please. I ask to have it read by the Steno-
grapher, and to have the Interpreter give the coorect and full answer to the question.
(It is repeated by the Stenographer.)
A Yes.
291
BY MR. ELY:
Q Why didn't you tell this conversation which you now
give concerning the threat of your brother to do your husband with his, your husband's. on revolver?
A Because my head was't all right.
Q Well, wasn't your head all right on the 6th of August,
1906, when you testified before the Coroner?
A I had no-- my head wasn't all right.
Q And was it all right on the 1st of August, 1906?
A No.
Q And when did your head become all right?
A In these
latter days, when I was calmed down, with my mind serene, in my own apartment, retired, and engaged in putting in order my things in the house.
Q And you have been in that quiet and peaceable and calm frame of mind for the last ten days; haven't you?
A I was calm in these latter days only, because I secluded myself in my rooms, and didn't want to talk with anybody.
Q (Question repeated.)
A No.
THE FOREMAN: Well, may it please your Honor,
I would like to know if the lady, the witness, is calm now.
THE COURT: Ask the question.
292
BY THE FOREMAN:
Q Are you clam now?
A Of couuse. BY MR. ELY:
Q Now, you were in the kitchen, wern't you, at the time
your brother knocked on the door, or were you in the kitchen at the time your brother returned adn knocked at the door? MR. LE BARBIER: I object. I sumbit this has
all been gone over in the direct and cross. THE COURT: I will allow it.
MR. LE BARBIER: Exception.
A When my brother knocked on the door, I was in the bed- room.
BY MR. ELY:
Q All right. Then you went out, nad let your brother in;
didn't you?
A I opened the door for my brother.
Q Yes. And then you let your brother in; didn't you?
A Yes.
Q And then you now say that your brother ran right into
the bedroom; do you?
A He first stopped at the door, and then they grappled. Then it was, subsequently, that they grappled.
Q Now you say he first stopped at the door.or at the
threshold of the kitchen door?
A At the door of the bedroom.
Q And was your husband at the door of the bedroom, as your they grappled. Then it was, subsequently, that they grappled.
Q Now you say he first stopped at the door. You mean
at the threshold of the door, the bedroom door, or at the threshold of the kitchen door?
A At the door of the bedroom.
Q And was your husband at the door of the bedroom, as your
293
brother arrived there?
A (No answer.)
Q Yes or no.
A My brother was just before the bed-- my husband was just before the bed, not my brother.
Q Now, I repeat my question.
(The question i8s repeated by the Stenographer.)
A He was near the bed, and the bed and the door was both close one to the other.
Q The bed and door are both close together?
A Yes, sir;
the bed and the door are close, one to the other.
Q Well, I want to know whether your husband was at the threshold of the bedroom door, when your brother arrived there?
A No; he was inside the bedroom, beyond the threshold, and near the bed.
Q Now, how near the door was the bed?
A About that far (illustrating).
THE INTERPRETER: Indicating half a foot. MR. ELY: No. Indicate again, indicate again. (The witness does so.)
MR. ELY: That's four and a half inches, by the
Clerk's rule. BY MR. ELY:
Q And then it was that you say, now, that the deceased and
the defendnat took ahold of each other, when your husband was
294
standing four and a half inches away from the door?
A Yes, sir.
Q And how far within the room-- and then your brother wasn't standing within the room at all, if your husband was standing four and a half inches away from the door; was he? MR. LE BARBIER: I object, if your Honor please,
and submit that the witness has been exhausted on the direct and cross examination, and has answered these questions a dozen times.
THE COURT: She may answer. MR. LE BARBIER: Exception.
A My brother was on the threshold. BY MR.ELY:
Q Yes, your brother was on the threshold?
A Yes, sir.
Q And where were you when your husband, as you say, was four and a half inches away from the door, and your brother was on the threshold of the door?
A I was behind my brother.
Q How far away from your brother?
A Just close to him.
Q Well, how far away? Do you want the rule again?
A You, with these trifling and ridiculous questione, make me nervous.
Q Well, I don't want to get you out of that calm mind,
Q Well, how far away? Do you want the rule again?
A You, with these trifling and ridiculous questions, make me nervous.
Q Well, I don't want to get you out of that calm mind,
295
I tell you very frankly, but just tell me how far away from you your brother was, at the time you were standing there, as you say?
A Well, as if from here to the chair where I am. (In- dicating.)
Q Indicate that again, will you, please?
A Well, by
brother was here, on the threshold, in the center, and I was here, just where I am now. (Illustrating)
Q Well, that is within two feet and a half of your brother;
is that right?
MR. ELY: You will admit that it is two feet and a half?
MR. LE BARBIER: I will not admit anything at all
in what I consider a ridiculous re-direct examination, and I now move to strike it all out.
MR. ELY: And I object to your characterization
of the re-direct and I ask that your Honor instruct counsel to be more themperate in his characterizations. THE COURT: Yes. Strike it out.
BY MR. ELY:
Q (Question repeated.)
MR. ELY: I would like to know whether that distance was two and a half feet that was indicated.
THE COURT: Well, counsel for the defense may
297
say whether or not they concede it.
MR. LE BARBEIR: Well, if your Honor please, I
will concede nothing from the District Attorney.
I have tried to be affable, but I am getting tired.
THE COURT: Well, the jury have seen the distance, Mr. Ely.
MR. ELY: But I want it on the record, if your
Honor please. BY MR.ELY:
Q From here to here?
A I can't tell just exactly. MR. ELY: Well, then, we will say two feet;
no, twenty-eight inches.
THE COURT: Then, that will appear on the record. BY MR. ELY:
Q And you were behind your brother, two feet?
A Yes.
Q Now it was then, wasn't it, that the struggle that you say occurred, happened?
A No; it was when I started to move some of the things in the kitchen.
Q Well, all right. But it started from the point that
you have just mentioned, did it not, with your husband there, four and a half inches from the door, and your brother on the threshold?
A They didn't immediately grapple. They insulted
each other, and they commenced to grapple when I removed the
Q Well, all right. But it started from the point that
you have just mentioned, did it not, with your husband there, four and a half inches from the door, and your brother on the threshold?
A They didn't immediately grapple. They insulted
each other, and they commenced to grapple when I removed the
298
things in the kitchen.
Q Well, then, they remained in that position there, insulting each other, until they began to grapple; is that right?
A Oh, they grappled in the moment that I was turned with the back for the things in the kitchen, and I didn't
see, in that moment, how they grappled, in the beginning.
It was when I heard the noise, that I turned again, and saw them grappling.
Q Now, until you turned your back, you observed your
husband standing four adn a half inches within the bedroom, and your brother standing on the threshold of the door, did you
not? Is that right? Yes or no.
A Yes, sir.
THE COURT: Gentlemen, we will suspend here for the day.
Gentlemen of the jury, do not talk about this
case, or permit anyone to talk with you about it, and do not from or express any opinion thereon, until
the case is finally submitted to you.
Be in your seats promptly at 10.30 o'clock on monday morning.
(The trial was then ADJOURNED until Monday morning, October, 22nd, 1906, at 10.30.)
299
The People vs. Biaggio Calandra. TRIAL RESUMED.
New Youk, October 22nd, 1906.
ANGELINA CALANDRA, being recalled for further cross examination:
MR. ELY: No more questions of this witness, your Honor.
THE COURT: The witness is with you, Mr. Le
Barbier.
MR. LE BARBIER: No more questions, sir. THE COURT: Then call the next witness.
MR. ELY: If Your Honor please, I find that my witness, my last witness in the People's case cannot be reached on the telephone, and he is under sub- poena, and we will now search for him, He promised to be here at 11 o'clock precisely, and it is now nearly half past eleven. He is a physician. And
I will ask your Honor for an adjurnment now, so as not to keep the jury sitting in the box unnecessarily, so that we may find this witness. He is the last witness that I propose to call in the People's case. MR. LE BARBIER:
A witness of ours has come in,
300
if your Honor please, and we asked the learned as- sistant to put him on the stand, to let us put him
on the stand, at least, and we were met with a re- fusal.
THE COURT: very well, then, call your witness if he is here.
MR. ELY: Well, if your Honor please, it is not
an orderly proceeding, and I think that we rhad better wait to call him in the regular order.
THE COURT: Then you desire a recess now, Mr. District Attorney, to search for your witness, and secure his attendance?
MR. ELY: Yes; I will see that he is here,
if it is possible to find him, and, if not, I shall ask for an attachment for him.
THE COURT: Then you desire a recess now until when? One o'clock or half past one o'clock?
MR. ELY: Well, sir, until half past one o'clock,
301
AFTER RECESS.
GIOVANNI MERENNA, a witness called on behalf
of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q You are a physician?
A I am.
Q Oh, Doctor, of course you were subpoenaed, this morning, and you did not get here. And you were prevented by professional business?
A Yes, sir.
Q Of a rather serious nature?
A Yes, sir; I had a case of delirium tremens on my hands, and I was--
Q And you came as soon as you could?
A Yes, sir.
Q And reported at my office, upstairs?
A I did.
Q Now, Doctor, do you know the defendant here?
A I do.
Q And do you see him?
A I do.
Q He is right here; is he (indicating the defendant)?
A Yes, sir.
Q And for how long a time have you known the defendant?
A For six or seven years.
Q And did you have any conversation with the defendant, four or five days before the 15th of July, 1906?
A Well,
I don't know what the 15th--
MR. LE BARBIER: Objected to, as immaterial,
302
irrelevant and incompetent.
THE COURT: That would be about the 10th of
July, 1906?
MR. ELY: Yes, sir.
THE COURT: He may say yes or no.
MR. LE BARBIER: Then I withdraw the objection to that.
BY THE COURT:
Q Yes or no, Doctor.
A Well, but I don,t know what date that refers to.
Q To the 10th of July. BY MR. ELY:
Q Somewhere about the 10th.
A How many days before the crime was committed? Then I could say.
BY THE COURT:
Q The alleged shooting is said to have occurred on the
20th of July last.
A Well, yes. BY MR. ELY:
Q And where was that conversation that you had with the defendant held, about ten days before the 20th of July, 1906? MR. LE BARBIER: Objected to, as immateria, ir-
relevant and incompetent. THE COURT: Allowed.
MR. LE BARBIER: Exception.
303
A Down at his business. BY MR. ELY:
Q Well, that is 282 Washington Street?
A Yes, sir;
in Washington Street.
Q And who was present at the conversation, if anybody?
A No one else.
Q Besides yourself and the defendant?
A Myself and the defendant.
Q Now what was that conversation? MR. LE BARBIER: Objected to.
THE COURT: Doctor, if this was a professional communication, received by you in the course of your professional duly, you must not answer the question, because you know that anything that is communicated to a physician cannot be divulged, because, of
course, the professional relation is established, and there is a privileged communication, and no evi- dence can be given of it.
THE WITNESS: This wasn't--
THE COURT: But, if it was not such a communica- tion, you can tell us of it.
THE WITNESS: This wasn't professional, your
Honor.
304
BY MR. ELY:
Q Then give us that conversation between yourself and the defendant.
MR. LE BARBIER: I object to it, as immaterial, THE COURT: Allowed.
MR. LE BARBIER: Exception. BY MR.ELY:
Q Now then please sya what you said to the defendant, and what the defendant said to you?
A I heard that there was a little trouble in the family--
THE COURT: No, no, Doctor. We want to know
what you said to the defendant, and what the defend- ant ssid to you.
MR. LE BARBIER: I move that that be stricken out.
MR. ELY: Unless he said that to the defendant. THE COURT: Of course, if you said that to the defendant, you may tell it; whatever you said to the defendant, and whetever he said to you.
THE WITNESS: Your Honor, that was the cause of my calling there.
MR. LE BARBIER: Now, I move to strike that out, as incompetent, immaterial adn irrelevant and it-
305 responsive.
THE COURT: Strike it out. All we want is the conversation between you and the defendant, the very words if possible.
BY MR.ELY:
Q (Question repeated)
A Well, I asked him why he
didn't go home, and he said, "I don't know. My wife seems
to be a little upset with her mind. She is somewhat jealous". MR. LE BARBIER: Now, if that is the answer, I
move to strike it out.
MR. ELY: But we haven,t yet the entire con- versation.
THE COURT: Let us have the entire conversa- tion. Reserve your motion, please, until we have the entire conversation.
MR. LE BARBIER: Exception. THE WITNESS: Well, that's all.
MR. LE BARBIER: Now, I renew my motion, and ask to have it stricken out.
THE COURT: Decision reserved.
MR. LE BARBIER: Exception. And I respect- fully ask for a ruling on this, at the present moment.
THE COURT: Denied.
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MR. LE BARBIER: Exception. BY MR. ELY:
Q Now, Doctor, after this conversation with the defendant, did you go anywhere?
MR. LE BARBIER: Objected to, as immaterial, irrelevant and incompetent.
THE COURT: Overruled.
MR. LE BARBIER: Exception.
A What do you mean by that, sir? BY MR. ELY:
Q well, did you see Mrs. Calandra?
A I did.
Q And, without giving any conversation that you had with Mrs. Calandra, I ask you if you had a conversation with her? Yes or no. Did you talk with Mrs. Calandra?
A I did.
Q About how long after seeing the defendant, at his place of business, was it that you saw Mrs. Calandra? MR. LE BARBIER: Objected to, as immaterial,
and incompetent.
THE COURT: Overruled.
MR. LE BARBIER: Exception.
A The same evening.
BY MR. ELY:
Q Yes. And then did you see the defendant again?
A The day after, I think.
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Q The day after you saw Mrs. Calandra?
A Well, No; the day after I saw the defendant.
Q I say --
A oh, yes; the day after I saw Mrs, Calandra.
Q Well, did you have a conversation with him?
A allways on the same basis.
MR. LE BARBIER: Now, I move that that be stricken out. Mr. KLY: I consent.
THE COURT: then sttrike it out by consent. BY MR. ELY:
Q Now, what did you say to the defendant, and what did he say to you, when you saw him?
MR. LE BARBIER: Objected to as immaterial, irrelevant and incompetent, and not a part of the res gestae, and not pertaining to the case.
THE COURT: Overruled.
MR. LE BARBIER: Exception. BY MR. ELY:
Q Now what was the conversation?
A As before, that he didn,t see any reason why Mrs. Calandra was jealous.
Q Well but did you tell him that you saw Mrs. Calandra?
A The day before. I said, Yes.
Q Well , now then tell us all that happened there, will
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you please, between you and the defendant; what you said to him and whathe said to you, and what you said to him, if anything, about the meeting which you had with Mrs. Calandra, the day before.
MR. LE BARBIER: Objected to as incompetent, and I respectfully call your Honor's attention to
the fact that no connection has been shown absolutely as to the deceased in this conversation, no connec- tion of any kind; and the fact is, under the open-
ing of the learned District Attorney, that we were living peacefully and happily together before the occurrence took place.
THE COURT: Objection overruled. MR. LE BARBIER: Exception.
MR. ELY: Now, will you also direct the jury
to disregard the statement that counsel knows was manifestly improper?
THE COURT: Certainly. Gentlemen, the state- ments made by counsel are not to be considered by you, at this time. They are for my benefit, not
yours.
BY MR. ELY:
Q Well now, Doctor, will you please tell us?
A Well,
I told him that he has always been good to his wife, that they
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had always lived a harmonious life, and I didn't see why he should keep out of the house, in these circumstances, and he said, "Well, there is no fault on my side, and I can,t do any- thing to prevent that."
Q Well, what else was said there then, if anything?
A Well he said, "There is a misunderstanding on the side of my wife there, in reference to"--
BY THE COURT:
Q Well did he say there was a misunderstanding?
A Yes, sir; that there was a misunderstanding.
BY MR. ELY:
Q He said that there was a misunderstanding on the part of his wife as to what?
A Well, because she was jealous.
Q Well, did he mention any name then, at all?
A No; he didn,t mention any name then at all.
Q Well, now, after that, did you see Mrs. Calandra again, before the 14th of July, 1906?
A No, I did not.
Q Did you see the defendant again before the 14th of
July, 1906?
A No, sir.
Q Now, did you see the defendant on the 14th of July,
1906?
A What day is that? If you tell me the day?
Q That was Saturday?
A Saturday, yes.
Q And who-- and where did you see the defendant?
A I saw him in a place in Bensonhurt.
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Q And who was there?
A Him and Mr. Ciofolo.
Q And who did the defendant come with to this place at
Bensonhurst?
A With Mr. Ciofolo.
Q And did you have any conversation with the defendant there, at that time, please?
A I had no conversation at all. We were at the place, and they just joined in.
Q Yes. Well, now, what was said by the defendant, if anything, about a reconciliation, or going home, or anything? MR. LE BARBIER: Now, may it please your Honor,
I do object, on the ground that absolutely there is no foundation for this.
THE COURT: Anything about a reconciliation would appear to be foreign to this case. The theory of the testimony is that they were declara-
tions against interest made by the defendant, and, if there are any such, let us have them. But any- thing concerning their strained marital relations would hardly be competent.
MR. LE BARBIER: Well, but there were no strained marital relations, absolutely none.
THE COURT: Then I will withdraw the word
"strained". Now, Mr. Ely, I will hear you.
MR. ELY: Well, it does not seem to me expecial- ly proper for me to state the entire scope of this
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examination now, before the jury, for the reason that anything that I might say on the subject might prejudice the jury.
THE COURT: Yes. The objection is made to your question, because your question inquires simple into the marital relations of the defendant and his wife.
MR. ELY: Well, now, if your Honor please, if the state of facts is this, that here was a brother-in-law-- MR. LE BARBIER: May it please your Honor, we object to any statement.
THE COURT: Well, I will here it.It is for my benefit.
MR. ELY: Well, we will approach the bench, and state it so that no one can here it.
MR. LE BARBIER: No, I don,t care to hear it, and I object to your stating it openly. You may tell it to the
Court. I don,t care to here it, either privately or openly.
MR. ELY: Now, I have explained the subject matter to the Court, briefly, that I propose to introduce, and, if there is an objection to the question, may the question be read, and we will see?
(The question is repeated by the stenographer)
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THE COURT: Well, I willl allow that question, the latter part of it. MR. LE BARBIER: Your Honor allows that question?
THE CORUT: Yes. I will overrule the objection. The question is so broad. I will overrule your objection, and give you an exception.
MR. ELY: Well, will you repeat that question again, Mr. Stenographer, and we will strike out"reconciliation". Perhaps that might be objectionable.
We will make that question:
"Q What was said by the defendant about going home, or anything of that description?" MR. LE BARBIER: Now I object to that question as leading.
THE COURT: Overruled.
MR. LE BARBIER Exception.
A Well, we were talking about going home, and he says, "I can't understand how that was taken up. There is no fault on my side. There is no one in the way, and so on, and I can't understand why my wife is jealous".
BY MR . ELY:
Q Yes. And what else did he say, if anything, about going home, or about any condition about going home?
A And, as a name was in the way, the best way is to shake hands, and make up.
Q Well, now, what was the name?
MR. LE BARBIER: Objected to as immaterial. BY THE COURT:
Q Well, if he said anything about it you may tell us?
A Celia.
BY MR. ELY:
Q Yes. Celia?
A Celia Manjanara.
Q Well, what did the defendant say about Celia Manjanara?
A that there was noting in the matter at all.
Q Well what was the conditon of his going home, as to
her?
A That Celia Manjanara was to shake hands with Mrs. Calandra.
Q And Ciofolo was there ?
A Yes, sir.
Q And the the defendant had come with him?
A Yes, sir. MR LE BARBIER: Now I respectefully move, may
it please your Honor, to strike out all of that
answer, as in no way connected with the deceased, as wholly immaterial to the case, as absolutely in- competent by way of evidence, under the issue in this indictment.
THE COURT: Denied, with leave to renew. MR. LE BARBIER: But when, your Honor?
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THE COURT: At the close of the testimony. MR. LE BARBIER: Exception.
BY MR. ELY:
Q Now, Doctor, did you see, after this converation
on the 14th of July, 1906, Celia Manjanara? Yes or no.
A When was it? What day was it?
Q The next day, the 15th, Sunday.
A Yes, on Sunday.
Q And did you go anywhere with Celia Manjanara?
A Yes, sir.
Q And where did you go?
MR. LE BARBIER: Objected to , as immterial, irrelevant and incompetent, an act done in the sance of the defendant, and in no way pertaining to this case.
THE COURT: S ustained.
MR. ELY; if your Honor please, if it is shown-- MR. LE BARBIER: I object to any statement on the part of the learned Assistant.
MR. ELY: If your Honor please, I think I have
a right to show this, if the act was in accordance with something that had previously been agreed to between the defendant and this witness, as a fact.
I am asking for a fact.
MR. LE BARBIER: Well, if I may say a word--
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MR. ELY: Now, please; I haven't got through.
THE COURT: I will here you, Mr. Le Barbier, as soon as the District Attorney has spoken. MR. ELY: I think that I have a right to show that an act, that a fact occurred, if that fact
was one that had been arranged, or if the other occurrence was one that had been arranged between this witness and the defendant; that's all. I don't askfor any conersation.
THE COURT: I adhere to my ruling, and sustain the objection to the qustion. CROSS EXAMINATION: None.
MR. LE BARBIER: May it please your Honor, I
respectfully move to strike out all the testimony
of Dr. Merenna, whose absence caused the delay, this morning, until now, 2 o'clock, on the ground that it is incompetent, immaterial and irrelevant,
and in no way connected, in no sense or manner what- ever with the subject matter and charge under the indictment, and in no way pertaining to the deceased. And I respectfully call your Honor's attention
to the fact that, under your Honor's suggestion,
I do think that the moment has arrived when it is
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proper for us, as counsel for the defendant, to make this motion. The witness has come here, and he has
testified to certain facts that, apparently, enlighten nothing about the case, and wholly immaterial and incompetent as regards the defendant.
THE COURT: Have you any more testimony, Mr. Ely? MR. ELY: No, sir.
THE COURT: Then it is proper for you to make your motion now, of course. MR. LE BARBIER: And I renew my motion.
THE COURT: The substance of the testimony, as I understand it, Mr. District Attorney, is that the witness and the defendant had conversation touching the defendant's marital relations? That's all. I
will strike that out.
MR. ELY: Well, sir, the point is --
MR. LE BARBIER: It is stricken out, his Honor says.
THE COURT: Wait a moment. I have intimated my intention, and I will now hear Mr. Ely.
MR ELY: The point is, if your Honor please, that, if these arrangements touching the occurrence that took place at the Italian pension, at Benson-
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hurst, had been simply and solely arranged by this witness, without any respect to the deceased, that, then, of course, they would have no bearing here, and would be stricken out, without any question.
But it does not appear that the deceased had nothing to do with them, because it does appar that the de- ceased was there, and that he took the defendant there, or went there with him, to the place where
this arrangement was made, and that he participated in it.
MR. LE BARBIER: Even so, your Honor. What has that got to do with the killing? In any way
has it been brought about by the learned District Attorney that anything connected with anything in the case, so far as
the killing is concerned?
THE COURT: I think that what you claim, Mr. District Attorney, appears in testimony, without
the Doctor's testimony. My impression of the whole case is that it does appear that there was some straining of the relations, and some effort made on the part of the deceased to bring them together. I think that appears in the former testimony.
MR. LE BARBIER: There is nothing absolutely in
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the case to that effect, your Honor. MR. ELY: No, sir.
MR. LE BARBIER: The District Attorney has labored hard-- MR. ELY: Oh, I object to these speeches.
THE COURT: I will listen to you, Mr. Le Barbier.
MR. LE BARBIER: I am only stating what I remember of the testimony. There is nothing in this case showing this -- I don't characterize the word at present -- but theory of the prosecution that
the deceased was in any wise concerned in anything relating to this so-called Celia Manjanara. The case is, upon the evidence, absolutely barren. MR. ELY: If your Honor please, according to my
recollection of the testimony, there is no direct testimony as to any effort on the part of the deceased, except in so far as it appears affirmatively
that the deceased went with the defendant, at this time, and participated in this conversation that the
Doctor has testified about just now. That seems to me -- THE COURT: The fact that the deceased and the defendant were together with the witness, of course,
319
I am not asked to strike out. I am only asked to
strike out the conversation which the Doctor had with the defendant. MR. ELY: In the presence of the deceased.
THE COURT: Yes; the conversations between the
Doctor and the deceased.
MR. ELY: And does that include the conversation with the defendant at his office, etc.?
THE COURT: Yes, yes; both at Bensonhurst and at his own office. Now, that disposes of the matter. Now, Mr. Le
Barbier.
MR. LE BARBIER: Now, I move to strike out the fact, if your Honor please, that the defendant was with the deceased at any time, anywhere, on the
ground that it is incompetent and immaterial and irrelevant. THE COURT: Denied.
MR. LE BARBIER: Except the night of the murder or killing, or shooting. THE COURT: It can do no special harm that I can see. I will leave that in. MR. LE BARBIER: Your Honor will leave it in?
THE COURT: Yes.
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MR. LE BARBIER: Exception. DO I understand that the People rest? MR. ELY: Yes.
THE COURT: Yes.
MR. LE BARBIER: Now, I move to strike out the testimony of Mrs. Caroline Filomano, on the ground that it is incompetent.
THE COURT: Well, will you not give me, in substance, that testimony?
MR. LE BARBIER: Well, that testimony was, she took the stand, and said she was the sister of the deceased. MR. ELY: Yes, the sister of the deceased.
MR. LE BARBIER: And she attended some alleged meeting, upon which subject her testimony was very vague, somewhere.
MR. ELY: No; she said at Bensonhurst.
MR. LE BARBIER: And then said -- your Honor then said you woudl receive it, subject to a motion to strike out. THE COURT: Yes. Subject to a motion.
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MR. LE BARBIER: And now I fail to see the materiality of her testmony, in any way. THE COURT: Well, I deny your motion, as made.
MR. LE BARBIER: I except. Wellm that is as near as I can recall that testimony, if your Honor please.
THE COURT: Very well then; I will deny the motion; and you may make any other motions that you have to make. MR. LE BARBIER: Exception. If I recall, your Honor, some of the testimony of the so-called janitress, Fitzell,
was taken subject to a motion.
I respectfully move to strike out her testimony.
MR. ELY: Well, why don't he refer to what he wants stricken out? MR. LE BARBIER: The whole of it.
THE COURT: That was the janitress, who saw the deceased come there? MR. ELY: Yes, sir; and she had some conversation with him.
MR. LE BARBIER: No; she don't say that he was the deceased.
MR. ELY: Yes. She says that was the man that went up into the apartments of Calandra, and the man
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that she saw afterwords go away in the ambulance. THE COURT: Denied.
MR. LE BARBIERl Exception. I move to strike out the testimony of Celia Manjanara, on the ground that it is incompetent, immaterial and irrelevant.
MR. ELY: That had betterbe made at the end of the case.
MR. LE BARBIER: No; I think it falls with the testimony of Dr. Merenna. MR. ELY: Not necessarily.
MR. LE BARBIER: I don't say necessarily, but it suggests itself to me, as matter of law, that that testimony should fall with the doctor;s testimony.
THE COURT: Denied.
MR. LE BARBIER: Eception. Now, I move, may it please your Honor, that the charge of murder in the first degree be withdrawn, on the ground that
there have been no facts sufficient to sustain any such charge. THE COURT: Well, Mr. District Attorney, what have you to say? MR. ELY: Well, if your Honor please, at this
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time I object to that. At the end of the defendant's case, I may, perhaps, have something to say on the subject; but, at this time, as there were
three shots fired, and it appears that the shots were fired by this defendant here, the fact that three three shots were fired is fufficient ground, it the jury believes
that, at any time between the first and second, or the second and third, the defendant had an opportunity to form a design to shoot again, and to shoot to kill,
and there wasn't justification, why, that is sufficient.
THE COURT: There is no proof here as to which shot resulted in the killing. MR LE BARBIER: But the three shots --
MR. ELY: Now, if your Honor please, I can't argue, if I am to be interrupted constantly by Mr. Le Barbier. I
am willing to have him to right on now, and
argue; but if not, let me complete my argument. It makes no difference which shot took effect, if the design on the part of the defendant, when he
pulled the trigger on any one of the three shots was to effect death, and that was without justification. Consequently, if there were three shots, it
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is a condition of affairs from which the jury would be able to find a verdict of murder in the first degree, which verdict could be well sustained on the
authority of a case in the Corut of Appeals, in which the Court of Appeals upheld the verdict of murder in the first degree in a case where the man
simply pulled a pistol, the defendant pulled a pistol, from his back pocket, and shot that pistol at the deceased, the jury finding that, between the time of the
pulling of the pistol from the pocket, and the shooting, there was time for deliberation and premeditation. THE COURT I am familiar with that case.
MR. ELY: Now, I simply say that, between the shooting of the first and third shots, without regard to which of the three shots was the fatal shot, the
defendatns had an opportunity, or it is possible, I don't say that he had, that he had time to deliberate and from the design to shoot again, and shoot to
kill.
Now, I don't say that, at the end of the whole case, I may not eb willing at make amotion on behalf of the
People, but at this time it does not seem to me that the motion should be granted.
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MR. LE BARBIER: What is your Honor's rulling? THE COURT: I thought you desired to be heard.
MR. LE BARBIER: Well, the facts are so patent, your Honor, that they speak for themselves.
THE COURT: I do not think that the proof here warrants the submission of the charge in the indictment of murder. I think it does require me to
submit the case as one of manslaughter. To that extent, therefore, I will grant your motion. MR. LE BARBIER: And does that apply, also, to the second degree of murder?
THE COURT: Oh, yes.
MR LE BARBIER: Exception.
THE COURT : I will submit it as one of manslaughter, and manslaughter has two degrees, you know.
MR. LE BARBIER: Now, I respectfully move, may it please your Honor, that, asto manslaughter, that that be withdrawn from the consideration of the jury, on the ground that the learned Assistant has failed to
pressent facts sufficient to constitute the crime of manslaughter in its firstbdegree. That;s all. THE COURT: Denied.
MR. LE BARBIER: Exception. I make that same
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motion in trgard to manslaughte in the second degree. THE COURT: Denied.
MR. LE BARBIER:l Esception. I now move your Honor, that you advies the jury to acquit, on the ground that the
People have failed to make out the
crome -- to make out any crime under the inditment in this case. THECOURT: "Denied.
MR. LE BARBIER: Exception. I also moe that your Honor advise the jury to acquit, on the ground that it is in evidence in this case that shooting
was not the sole inducing he said that the cause of death was peritonitis, caused by -- THE COURT: I recall the testimony to which you refer.
MR. LE BARBIER: But the other physician, Dr. Ward, testified that the second operation was, in part, the inducing cause of death; and, if I recall the testimony correctly, the pistol shot wound was not the sole inducing cause of death.
THE COURT: Denied.
MR. LE BARBIER: Exception.
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OPENING ADDRESS FOR THE DEFENSE
of
CHARLES E. LE BARBIER, ESQ. May it please the Court:
Mr. Forman and Gentlemen of the Jury:
The mountains have certainly labored, the mountains have certainly labored, but, according to us, and our testimony, we hold that not even a mouse was born.
I do not purpose, at this moment, taking up any part of your time, for two reasons, first, a speech, at times, is an infliction, and, second, it does
seem that it is a necessary part of the procedure, in an important matter of this kind that, before the case is finally submitted, and before the full
case is laid before the jury, some address should be made by the attorneys for the defense.
We thank our stairs that, finally, we can get to the jury, because, if there ever was a case of merit, if there was a case where a killing was
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not a murder, it is this case.
Our defense is a very simple one. The Court will charge you that an indictment is, after all, but a written accusation.
A great many
man have been indicted, and a great many men have been excused or discharged.
So far as indictment is conxerned, it is a written accusation, it is what the Grand Jury say -- THE COURT: Mr. Le Barbier, are you not summing up your case now?
MR. LE BARBIER: No,, sir, I am not.
MR. ELY: Well it seems to me that it is simply a summing up.
THE COURT: Well it seems to me that what you are now stating is not a proper matter for the opening. I will charge it, when the time comes;
and an opening is simply to enable the jury to understand the testimony, when it is adduced; but it is not proper to go into a statement of the law, or a
discussion of the evidence.
MR. LE BARBIER: Very well, sir. THE COURT: Proceed, please.
MR. LE BARBIER: Well, now, the defendant at the
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bar is charged with the crime of murder, and two degrees of murder have been taken away, and it is manslaughter, now.
He is a hard working, peaceabel, honest fellow. He has carried on his business here in the City of New York for years, as a decent, honest citizen,
and a voter; and, just as the learned Assistant, in his opening, said, that their reputation, and his reputation, was good. Now, there is no getting
out of that. It stands established in this case, under the opening of the Assistant District Attorney, that the defendant's reputation is good.
The reputation of the deceased, in a measure, was violent; that is, his reputation for peace and quiet was violent. He was a fellow who, when he had a
jag on --
MR. ELY: Now, if your Honor please; this is summing up again. MR. LE BARBIER: This isn't a summing up.
MR. LE BARBIER: He, if he had a jag on, or was under the influence of liquir, I may say, was ugly. Now there is no getting away from that.
And, on the nightin question, he came into the
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house ugly. But they talked there, that evening, the family, end, as the evidence has shown here, there was nothing developed; and Mrs. Giglio and
her family went away, and the deceased went away.
And, as the evidence for the People shows, I think Mrs. Calandra said something to the defendant, "There are always quarrels in this house", and he
answerd that there were not, except when her brother was drunk.
Now, that is the People's case And, at this moment, the brother was out in the hall, outside of the apartment.
MR. ELY: It is summing up, if your Honor please. Excuse me.
MR. LE BARBIER: Now, I object to these interruptions. It is not a summing up. THE COURT: Mr. Ely is quite within his rights in making objections.
MR. LE BARBIER: I know. But I object to the objection, your Honor. I am simply citing, may it please the
Court, the evidence of that Particular meeting, and what took place.
MR. ELY: He has absolutely adduced nothing but
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a summing up on the evidence for the People.
THE COURT: Mr. Le Barbier, when Mr. Ely is properly addressing the Court, I will not permit you to interrupt him.
MR. ELY: But I say thatmhe isn't properly addressing the Court.
THE COURT: Now, Mr. Ely, I will watch the matter. Be seated, please, Mr. Ely. Proceed, Mr. Le Barbier.
MR. LE BARBIER: And he was outside, and he heard that remark. That is the evidence of this case, and our evidnece; and, when he heard the remark,
he came and violently knocked upon the door; and, just as the wife said, that her husband, when she asked about opening the door, said, "No, no," so
we will show you that, at that time and at that moment, we told the wife not to open the door. And, when the deceased came in there, he came in as a trespasser on our premises.
First, he came into the door, and he said, "You viliaco, you dastardly fellow, do you say that I am drank?" And he stepped the kitchen into the
bed room, where, by the great Eternal, the defendant
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was underssed, and rushed at him.
And the testimony in this case was that the wife said. and it is in testimony on behalf of the People, unimpeached, that the deceased said,
"I'll finish you, to-night, even with your own revolver. I'm not afraid."
The deceased then was in the bed room on the defendant, who was in his pyjamas and his stockings. We are not shirking this issue in any way. We are only too glad to come forward and tell our story.
As he came in the room, just as the wife said, and as we will show, he made a lunge, and struck at the defendant, in his pyjamas and in his stockings,
virtually in bed.
The defendant dodged, and, just as the evidence of the People is, so is our evidence, that, on the bureau in the defendant's room was a revolver; and,
when he struck at him, we saw then the defendant, the deceased, making for the revolver.
And, at the same moment, thoroughly aporeciating the danger of the situation, the two reached the revolver together on the bureau. The defendant, in
his pyjamas and stockings, no shoes on, reached for the revolver. Ciofolo, who had been ugly and surly,
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that night, and who trespassed in there, and was the aggressor, reached for the revolver, and, ye gods, they both got that revolver together.
And, as they both got the revolver together, gentlemen, then it was that the struggle commenced.
Take yourseoves back to those premises, under the diagram, as illumiating this case, and see where it was that the entrances are and where the bed room is.
And them, when this man was fighting for his life, when the doceased was doing his damnedest, they struggled into the kitchen.
And this little pigmy, you might say, kept shouting to this giant, we might call him, "Go home, go home. Don't."
And there they were, struggleing. And they struggled on, just as the Prople's evidence shows, into the kitchen.
The things were swept from the tabel, and the table overturned. They struggled the whole length of the eighteen feet of that kitchen, until they came to
the window; and, still the forbearance on the part of the defendant was phenomenal, urging his brother to
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go away, endeavoring by every human power to get hold of the revolver, so that, if he could not get away, he could pull the trigger, and he couldn't do it.
And there they struggled, just as the People's evidence shows you. The deceased took the defendant, struggling with him, and tried to shove him out of
the window. No crank from a bullet. I don't believe it will be asserted, on all the evidence in the case, that a bullet from the revolver cracked the
window. And he tried to push him out of the window, and failed. He broke the window.
And again, gentlemen, the struggle was resumed there in the kitche; and finally, at this moment, when he had failed to push him through the window,
with the desire to kill him on the part of the deceased, he twised the defendant's arm, and bit him on the upper and lower side of the arm.
And still, with the dtrength born of despair, the defendant held on to that revolver, struggling, and telling the defendant that he would kill him
with his own revolver.
Now, there was the situation. The strenght, the energy, even of this dwarf and cripple was fast going
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away. He knew that he was facing death. He knew that the last final effort had to come; and, in the sheer strength fo despair, for a moment only,
he managed to get that revolver, as he thought and felt, in his hand, and bulled quick the trigger twice.
It proved toomuch for him. The deceased, at that moment, got the revolver from him, and , not beliving that he was hurt, turned the revolver upon the
defendant, and fired a shot.
Think of it. And that's how it was that that revolver was taken from us with the unloaded cartridges; and that's how it was the third shot came to be fired in this
case; and that's how it was that the deceased he had killed the defendant and that probably he was uni8jured, and that, of all the people around there, he was the only one to say,
"No; the defendant didn't shoot me."
He was the only one who couldn't say it because he was the only one who believed that he had killed. Now, there was this desperate struggle. He was
limp; he fell donw; he was on the floor, wet, you might say, with perspiration. that wa s his position,
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with his wife fainting.
Now, we say to you, gentlmen, that, getging back exactly to this case, technically to the case, as out learned
Assistant District Attorney world have us,
just under the cold woeds of the statute, we had reason to apprehend grievous bodily injury. We can say it at any time, and in any chain of events,
that we had reason to apprehend grievous bodily injury; and, if I can prove it, no mater how you may roar the words out, we are justified under
the statute.
That's our case, as it will be told to you by the defendant himself, backed up with good character, acknowledged by the People.
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THE DEFENDATN'S TESTIMONY.
BAYARD C. FULLER, a witness called on behalf fo the defense, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. LeBARBIER:
Q Mr. Fuller, how old are you?
A Forty-two.
Q What is your occupationor business?
A I am the supervising inspector for the Department of Health -- supervising Inspector of the Department of Foods.
Q And in what department are you employed?
A I have just said, the Department of Foods, Board of Health.
Q Well, any other special department?
A No, sir.
Q Well how long have you been in that department? THE COURT: Is it a character witness?
MR. LE BARBIER: Yes, sir. BY MR. LE BARBIER:
Q Now how long have you been in that department?
A Sixteen years.
Q Now do you know the defendant?
A Yes, sir.
Q How long have you known him?
A I couldn't tell you exactly, but a good number of years.
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Q Do you know others who know him?
A Yes, sir.
Q Have you had occasion to see him frequently?
A Oh, I pass him by nearly every day, in fornt of his place of business.
Q Do you know what his reputation is for truth and veracity?
A Why he seems to be--
Q Is it good or bed?
BY THE COURT:
Q No, no. Do you know how he is esteemed in the speech of his neightbors?
A Well they seem to take him all right, the people that I have talked to about him.
BY MR. LE BARBIER:
Q Well do you know what his reputation is?
A Yes, sir.
Q What is it? Good or bad?
A Good.
Q And did you know Joseph Ciofolo in his life time?
A Oh, yes.
Q And did you know others who knew him?
A Yes.
Q And do you know what his reputation for peace and quiet was? Just yes or no?
A Yes.
Q What was it? Good or bad?
A Well, it was both.
Q Both?
A Yes, sir.
Q Both good and bad?
A When he was drunk, he was very bad; and, when hewas sober, he seemed ot be pretty good.
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Q Now I didn't ask you what the reputation of the defendant was for peace and quiet. Do you know what it was.
A Good, sir. You did ask me that question.
THE COURT: Yes; you asked him the qustion, I think.
MR. LE BARBIER: No, sir; it was for truth and veracity, I think. CROSS EXAMINATION BY MR. ELY:
Q Mr. Taylor -- is that name?
A Fuller.
Q Bayard Fuller?
A Yes, sir.
Q And did you know the defendant in any other than a business way?
A No, sir.
Q You did not? He was not a personal friend of yours?
A Business only.
Q He was not a personal friendof yours?
A No, sir.
Q You didn't go around with him at all; did you?
A No, sir.
Q You knew nothing about him in his domestic relations; did you?
A Nothing, sir.
Q And you never conversed with anybody to find out what his reputation in his domestic relations was?
A No, sir.
Q And all that you knew about him was purely from a business standpoint?
A From a business standpoint; that's all.
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Q And you never had any occasion to find out his reputation other than as a business man; did you?
A That's all, sir.
Q And the same remarks applywith regard to Ciofolo?
A The same thing.
Q That you knew him absolutely in a busness way?
A Yes, sir.
Q And that only?
A Only in my business ralations; that's all.
EDWIN S. JOHNSON, a witness called on behalf of the defense, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. LE BARBIER:
Q Mr. Johnson, how old are you, may I ask?
A Forty-six.
Q What's your business?
A Commission business; produce commission business.
Q How long have you been in that business, Mr. Johnson?
A All my life.
Q Are you in business for yourself, may I ask?
A Yes, sir.
Q Do you know the defendant in this case, Calandra?
A Yes,
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Q How long have you known him?
A Well, as a tenant of mine, about four years, I believe.
Q Yes. Do you know others who know him?
A Yes, sir.
Q Do you know what his reputation for peace and quiet is?
A Good.
Q Good?
A Yes, sir.
Q Do you know what his reputation for truth and veracity is?
A Yes, sir.
Q What is it? Good or bad ?
A Good.
CROSS EXAMINATION BY MR ELY:
Q How long have you known the defendant, if you have known him at all?
A Well, I have known him in a business way about ten years.
Q Well, have you ever known him socially?
A Well, only around business.
Q Do you know what socially is?
A I think so.
Q Well, now, then, I ask you if you ever have known him socially?
A No, sir.
Q Have you visited him at his house?
A Once.
Q Socially or on business?
A Business.
Q Has he visited you at your house?
A , No, sir.
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Q What ?
A No, sir.
Q Now, are you married?
A No, sir.
Q Well have you met him, the defendant and his wife around at social functions?
A No, sir.
Q And you haven't in any way known him at all as a friend, or in his social or domestic relations?
A No, sir.
Q All you know of him is from a business standpoint purely; is it?
A Yes, sir.
Q And you have leased some apartments, I imagine and infer from what you said?
A Yes, sir.
Q And you got your rent?
A Yes, sir.
Q And that's all you know about it; isn't it?
A That's all.
BIAGGIO CALANDRA, the defendant being duly sworn, testified as follows: IRECT EXAMINATION BY MR. LE BARBIER:
Q How much do you weigh? MR. ELY: I object.
THE COURT: Sustained.
A About --
MR. ELY: Objected to.
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THE COURT: You need not answer. MR. LE BARBIER: Exception.
BY R. LE BARBIER:
Q Do you know how much you weight? MR. ELY: Objected to.
THE COURT: Allowed. BY MR. LE BARBIER:
Q Yes or no?
A I do know.
Q How much do you weigh? MR. ELY: Objected to.
THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Are you a cripple? MR. ELY: I object.
THE COURT: He may answer that.
A I am a cripple.
BY MR. LE BARBIER:
Q Have you the use of both of your legs?
A I have a stiff leg.
Q Can you bend it?
A No, sir.
Q Bend it for Mr. Ely?
A I can't. I wish I could. MR. ELY: I don't want it bent for me. Bend it
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for yourself, if you want to.
THE COURT: Gentlemen, no comments. BY MR. LE BARBIER:
Q Are you a hunch-back?
A Yes, sir.
Q How old are you?
A Thirty years old.
Q How old?
A Thirty years.
Q Are you married?
A Yes, sir.
Q The Mrs. Calandra who testified here is your wife, is she not?
A Yes, sir.
Q Do you love her?
MR. ELY: I object.
A Yes.
MR. ELY: I object.
THE COURT: Objection sustained.
MR. ELY: And I ask to have the answer stricken out, and the witness instructed not to answer when I object. THE COURT: Yes. And do not answer whenever an objection is interposed. Strike out the answer.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Do you maintain her? MR. ELY: Objected to. THE COURT: Sustained.
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MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Have you always lived with her as a faithful and devoted husband? MR. ELY: Objected to.
THE COURT: I will allow this question, in view of some of the evidence in the case.
MR. ELY: I don't object to his asking him whether he has always lived with his wife, but the other part, I do object to.
MR. LE BARBIER: Does your Honor strike out any part of the question? THE COURT: I do not. He may answer. Repeat the question.
(The quesiton is repeated by the stenographer.)
A Yes, sir.
BY MR. LE BARBIER:
Q What is your business?
A Fruit merchant; wholesale fruit merchant.
Q How long have you been in that business?
A I have been in the business since I was ten years old.
Q How long have you been in the business in the City and County of New York?
A Since I was ten years old.
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Q Do you know Joseph -- did you know Joseph Ciofolo?
A Yes, sir.
Q What relationship had he to you?
A My brother-in-law.
Q Were you ever in his employ?
MR. ELY: I object to that, as immaterial, whether he ever was or not.
MR. LE BARBIER: I submit , your Honor, that we can show something, just a little something, in this case. THE COURT: I will sustainthe objection to the question, because it relates to antime to remote.
MR. LE BARBIER: Exception.
THE COURT: If you will bring your date down to a recent time, I will allow it. BY MR. LE BARBIER:
Q When was it that you were in the empoly of Joseph Ciofolo? MR. ELY: Objected to as leading.
THE COURT: Yes; you are leading your witness.
MR. ELY: And interjecting something into the qusetion that hasn't been proved. MR. LE BARBIER: Well, I'll prove it now.
BY MR. LE BARBIER:
Q How long have you known Joseph Ciofolo?
A About
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twenty years.
Q Did you ever do business with him?
A I have done some business with him; yes.
Q When did you first do business with him?
A About ten years ago.
Q Well, at thatbtime, were you in his employ or was he in your employ?
MR. ELY: I object to it, as immaterial, irrelevant and incompetent, and too remote. MR. LE BARBIER: It may lead up to something, your Honor.
THE COURT: Allowed. It is preliminary.
A I was in his employ.
BY MR. LE BARBIER:
Q At the time of your brother-in-law's death, in whose employ was he, if you know?
A I do know.
Q Well tell us then?
A In my employ.
Q You know that?
A Yes, sir.
Q How long had Joseph Ciofolo been in your employ?
A About five years.
Q Are you a little deaf; are you a little deaf?
A Yes, sir.
Q In one or both ears?
A Pardon me?
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Q (Question repeated).
A In one ear. (Indicating the left ear). BY MR. ELY:
Q which one is it, which one is it?
A This one here (Indicating the left ear.) BY MR. LE BARBIER:
Q Mr. Calandra, will you kindly state to the Court and jury what took place, on July 20, 1906?
MR. ELY: I object to the statement by the witness, and ask to have him interrogated, under question and answer, so that irrelevant and incompetent matters may be kept out.
THE COURT: Yes; question and answer, Mr. LeBarbier.
MR. LE BARBIER: Very well, your Honor. I except to your Honor'a ruling, as I must. MR. ELY: And I object to the remarks of counsel, every time your Honor rules.
BY MR. LE BARBIER:
Q Now, on the afternoon of July 20, 1906, when did you revive home?
A About half past five or six o'clock.
Q Where did you live then?
A 309 East 90th street.
Q Did you live there with anybody?
A With my wife.
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Q When you arrived at that place, that night, did you go in?
A I did, sir; in the kitchen.
Q Did you see anybody in your apartment?
A My wife, Mrs. Giglio and her daughter, Katie Giglie.
Q When you went in, what did you do?
A Well I took
my coat off, and went in the bed room, and took my revolver, and put it on the bureau, and tried to wash my face and hands,
and sit on the table to have my supper.
Q Did you lay the revolver on the bureau?
MR. ELY: Now I object to this leadding, if your Honor please. THE COURT: Sustained.
BY MR. LE BARBIER:
Q Well what did you do with your revolver?
MR. ELY: I object. He has just testified on that subject.
THE COURT: It has been testified to, in the very last answer of the witness. MR. LE BARBIER: Does your Honor sustain the objection?
THE COURT: I do.
MR. LE BARBIER: Exception: BY MR. LE BARBIER:
Q Well what happened next?
A Then, after I sit
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down, I exchanged a greeting with Miss and Mrs. Giglio, and my wife was getting supper ready, and we had some spaghetti, that night, and so I told Mrs. Giglio --
MR. ELY: I object to that, to what they had to eat, that night. THE COURT: Yes. Objection sustained.
A (Answer continued) And I said to Mrs. Giglio to have supper with us. MR. ELY: I object to this.
THE COURT: Question and answer, Mr. Le Barbier, otherwise we will get irrelevant details into the case. We do not care about the small gossip of the dinner table.
MR. LE BARBIER: Well, the Prosecution made a great deal of the gossip there, that night, if your Honor please, a great deal.
THE COURT: Proceed, please.
MR. LE BARBIER: And I submit that it is part of the res gestae. THE CORUT: I overrule your objection.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q After you exchanged your greetings with Mrs. and Miss
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Giglio, and your wife being present --
A Yes, sir.
Q And your coat off, what did you do?
MR. ELY: Now, I object to the summing up of the statements of the witness, in that way. It is manifestly improper and contemptuous.
THE COURT: Yes. Objection sustained.
Q What did you do then?
A Am I to answer.
Q Yes.
A We sit down, and all had something to eat. BY MR. LE BARBIER:
Q How long did you remain there?
A We remained there, say, about fifteen minutes.
Q Yes.
A Then I heard the bell ring. I got up, and opened the door, and I seen Mr. Vito Giglio coming in, and
I said, "Hello, vito".
MR. ELY: I object to these conversations. THE COURT: Yes.
MR. LE BARBIER: Won't your Honor permit him to answer that, to tell that? THE COURT: No. Never mind what you said to him. Strike that out.
MR. LE BARBIER: Exception.
Q Well you said something to him, though; didn't you?
A Yes, sir.
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Q Did Vito Giglio then come in?
A Yes, sir.
Q In where?
A In the kitchen.
Q When he came in, what happened?
A He sit down on the table, and I invite him to have supper with us. He sat down on the table, and then we started about some--
MR. ELY: Objected to.
A (Answer continued) -- about some general things. BY MR. LE BARBIER:
Q Well, general conversation?
A Yes, sir.
Q Did Joseph Ciofolo come there, that night?
A Yes, sir.
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Q What?
A He come there.
Q What time, about?
A Well, I couldn,t exactly remember the time, but it ought to be half past seven or twenty minutes of seven; somewhere around that time.
Q How do you know he came there that night?
A Well, I heard the bell ring.
Q Yes?
A And I went to open the door, and then I looked through the hall, and I see him coming upstairs, and I
turned around and I said to my wife and the other people, "There's Joe," and I said, "Hello, Joe. Come in," and he come in the kitchen.
Q Did he say anything?
A Yes, sir.
Q What did he say?
A He says to me, "That's a fine thing. You stay here, eating, and the people has got to wait in the store."
Q And what did you say?
A I said, "Joe, you needn't wait to the store. When you get through with your work, you could go away. You had all the chance to go. Nobody told you to wait, when you want to go. I give orders to all my people, if I don;'t come back at five o'clock, to close the store, and so I don,t see no use of your waithing for me."
Q And what was said then?
A Well, I had him sit down. I said, "Sit down, Joe." And he said; "Never mind. That,s all right," and he
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started to be ugly, and I said, "That,s enough. Let's change the conversation. Let's have a glass, let's have a drink. Forget it, " I says to him, and we all drink to the Saluta (illustrating).
Q Wait a minute. When you say you all drank to the
Saluta, you meen to the health?
A Yes; to the health.
Q And after that what happened?
A Well, after that we all engaged in some general conversation, me, Mrs. Giglio and my wife; we all had some general conversation.
And it was about ten minutes to eight, and I wanted to get up at 12 o'cocok. I had to go down to the market very early.
MR. ELY: I object to that, as to what he had to do.
THE COURT: Yes. Strike that out, as to getting up early to go to the market.
MR. LE BARBIER: May it please your Honor, this is all in, on the part of the prosecution. THE COURT: Strike it out, at this time.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Did you wind up your clock?
A Yes.
Q Was it a watch or a clock?
A it was a clock, an alarm clock.
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Q An alarm clock?
A Yes, sir.
Q Where did you carry it? In your pocket?
MR. LE BARBIER: Objected to as immaterial, irrelevant and incompetent. THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Where was it?
A On the top shelf. There was a shelf on top of the stove, and it was right up there.
Q And did you wind it up?
A I did, sir.
MR. ELY: Wait a minute. I object to this as incompetent, immaterial and irrelevant. THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q did you do something to the clock? MR. ELY: Objected to.
THE COURT: Sustained. He has already said that, that he wound it up. It becomes comulative, through repetition.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q When you wound up the clock what, if anything, did you say to the people present?
A I said to the people present --
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MR. ELY: I object to that, if your Honor please. We haven't brought it out. MR. LE BARBIER: On the contrary, it came out by their own witness.
THE COURT: I will receive it, as res gestae. I think it is open to objection, but perhaps it is safer to receive it. Go on, please.
A (Answer continued) I said to the people present, I says, "I must beg your pardon, but I've got to go to bed. I need a few hours of rest, and so I must go; but, if you want to. remain, you can keep up the conversation, you can keep up some conversation with my wife, and I don't and I don't mind if you keep the conversation, because I am a very fast sleeper, and you don't wake me up, if you keep the conversation, and I will speep."
BY MR LE BARBIER:
Q And did they remain?
A Yes, sir.
Q How long?
A About a few minutes.
Q And then what happened?
A Well then Mrs. Giglio, Miss Giglio and Mr. Giglio went out. My brother-in-law remained.
Q How long did he remain?
A Well, I can,t tell you how long he remained. He remained a little while.
Q Well, about how long?
A About ten or fifteen minutes,
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something like that.
Q And then what happened?
A Well then my brother-in-law said to me, "That,s fine of you. you go away and leave me there," and I said, "Joe, didn't I tell you that you could go away any time you pleased? What,s the use of waiting for me in the store? You had no right to wait for me in the store," "Well," he said -- well some kind
of words -- and I said, "Never mind, Joe. I'll go down to the market at 12 o'clock, and then we reason this matter out, in business, to-morrow."
He started talking to me again, and I said, "Joe, I won't bother with it. I see you are drunk, " I said to
him, "and I don't want any trouble in this house, more than I can avoid; I don;t want no trouble at all. And didn't I tell you, " I says, " that I will go down in the market in the morning, and this is a matter fo business, and we'll settle the business down at the market."
Then he said to me, "How ar you going to settle? By discharging me? " he says. "I will break every bone in your hump before you discharge me.:"
I says, "Go away, Joe, please go away. I don,t want to have any troble. I want to go to bed." I went in my bed room. and started undressing myself.
He kept on insulting me, but I didn't answer him, because I didn't want to give him no occasion --
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MR. ELYL: I object to that, that he kept on insulting him, and ask that it be stricken out. THE COURT: Strike it out, that he kept on insultting him.
BY THE COURT:
Q Tell us anything that he said or you said?
A No, sir; I never answered him, because I didn,t want to give him no occasion to strike me, because I saw he was in an ugly mood.
MR. ELY: I object to that, to the latter part of the answer.
THE COURT: No. Strike that out, that he saw that he was in an ugly mood. Tell what was said and done. BY MR. LE BARBIER:
Q Well, when he said that he would break every bone in your hump, what did you say?
A I didn't answer. And he started to insult me some moer.
MR. ELY: I object to that, that he started to insult him some more, and move to strike it out. THE COURT: Motion granted.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Now wait. Do you recall the words. the talk that was
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had, before he went outside?
MR. ELY: I object to that. That is manifestly improper. THE COURT: Sustained.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Did you say anything?
A I didn't say anything after he say that.
Q Did he say anything?
A Who? Him?
Q Yes. Did he say anything to you after that?
A Yes. He says some more insulting. He said, "You are a miserable cur, and you are no man at all".
Q He said, "You are a miserable cur, and you are no man at all?"
A Yes, sir.
MR. ELY: And I object to the repetition by counsel of that. The stenographer is the proper person to repeat it, if necessary.
MR. LE BARBIER: And I submit that I have a perfect right to embody the answer in my question, and should not be called down by the District Attorney.
THE COURT: No. Proceed. MR. LE BARBIER: Exception.
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BY MR. LE BARBIER:
Q What did you say to that?
A I didn't answer to him: I didn't want to give him any occasion to put up the trouble.
MR. ELY: I object to that, and move to strike out the latter part of the answer. THE COURT: Motion granted.
MR. LE BARBIER: Exception.
A I said nothing.
BY MR. LE BARBIER:
Q Well did you answer him?
MR. ELY: I object. He says that he said nothing.
MR. LE BARBIER: May I ask who is examining the witness, your Honor? I submit that I have some rights to examine my own witness here, and legally.
THE COURT: Proceed to examine your witness.
MR. LE BARBIER: That's what I am doing, with respect to your Honor.
THE COURT: No, do not argue with me. You may have an exception, if you desire. Proceed with the question. BY MR. LE BARBIER:
Q Is that all you said?
A I didn't say no more. I only said, "Oh, that's all right." And I was just trying to
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quiet him down, and get him to go home.
MR. ELY: I object to that, to the latter part of the answer, and move to strike it out. THE COURT: Motion granted.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Well, did anybody say good night?
A He did.
Q Well, how did he say it? I want to get it?
A Well, he went out, and eh said, "Good night," before he went out, and I didn't answer to him.
Q Did he go out of the premises altogether?
A Yes; out in the hall.
Q And was the door locked?
A Yes. I banged the door right after him. MR. ELY: Objected to, as leading, at this time.
THE COURT: Objection sustained. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q Now do you know of your own knowledge whether or not when he said, "Good night," to you, and went out, the door was shut?
A Yes; I know from my own knowledge that he said "Good night," and went out, and the door was shut.
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Q Shut?
A Yes, sir.
Q After he went out --
Question withdrawn. What kind of a lock is on that door?
A One of them yellow locks.
Q Not a yellow lock, but a Yale lock you mean?
A Yes. I can't speak that so well, you know; a Yale lock.
Q When you went out -- question withdrawn. What happened next?
A My wife started to upbraid me.
MR. ELY: I object to that, that his wife started to upbraid him. THE COURT: Strike it out.
MR. LE BARBIER: Exception.
MR. ELY: And I object to what his wife said to him. That is improper and incompetent.
MR. LE BARBIER: It si part of the res gestae, which your Honor just admitted, a moment ago. THE COURT: No, Sustained.
MR. LE BARBIER: Exception.
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BY MR. LE BARBIER:
Q Did your wife say something to you. BY THE COURT:
Q Yes or no?
A Yes. BY MR. LE BARBIER:
Q How long did you remain with your wife in the room? MR. ELY: I object.
BY MR. LE BARBIER:
Q If you were in the room?
MR. ELY: No, no. I object to that. It is improper to suggest that to him. MR. LE BARBIER: Surely your Honor doesn't hold that I am suggesting? THE COURT: I sustain the objection.
BY THE COURT:
Q Did you here anything more of the deceased, or not?
A Yes, sir.
Q When wa it and what was it?
A Well he say,"Open, open, Angelins. I'll show him if I am drunk," BY MR. LE BARBIER:
Q Did your wife go to the door?
A I holler at my wife first --
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Q What did you holler?
MR. ELY: I object, I object.
MR. LE BARBIER: I submit that this is directly in line with the testimony. THE COURT: He may answer that.
A I answer back, "No, no". BY MR. LE BARBIER:
Q "No, no" what?
A "Don't open".
Q Where were you at that time?
A In my bed.
Q Did you have your clothes on in bed?
MR. ELY: Now, I object to that.
A My underclothes on.
MR. ELY: I object. This is very leading.
THE COURT: Don't lead the witness. it may be harmless, but it is leading. Be careful to avoid even the appearance of leading.
MR. LE BARBIER: I will do so, sir. BY MR. LE BARBIER:
Q Did you have underclothes on?
A Yes, my shirt and drawers, my underclothes -- my under drawers and my under shirt. That's all I had on.
Q Stockings, sooks?
A No, sir. No socks.
Q Were you actually in bed, Calandra?
A Yes. MR. ELY: I object to that, sir. That is in
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the nature of cross-examining his own witness. He says he was in bed.
THE COURT: It is already answered. Go on, please.
BY MR. LE BARBIER:
Q Were you in bed when you called outthese words to your wife?
A Yes, sir.
Q "No, no, don't open"?
A Yes, sir.
Q Was that the only bed in those premises?
A Yes, sir.
Q What happened next?
A My wife opened the door,
and he come in. He come right on me, and he says, "You villia- co" (Illustrating).
MR. ELY: No,/no. I object to this method
of testifying. We are not having a pantomine here, sit. I suggest that he should keep his seat, and keep cool.
THE COURT: I will receive it. He may rise
from his seat, and illustrate, if he wishes to do so, at this point.
MR. LE BARBIER: Your Honor says you will re- ceive it; do you?
THE COURT: Yes.
THE WITNESS: May I proceed? THE COURT: Yes.
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BY MR. LE BARBIER:
Q Go on. His Honor says that you may state that?
A He ssys, "You villiaco, you told your wife that I am drunk. I am not a drunkard. I am going to have a finish with you,
to-night, and I am not afraid of you or your revolver," and
he took me and swung me towards the closet there (Illustrating). MR. ELY: Now, I object to this pantomine.
THE COURT: He has the right to illustrate, at this poijnt.
BY MR. LE BARBIER:
Q Where were you?
A Right in my bed room. And he
comes right in as far as the door, and he caught me, and swung me to the closet, and I said, "Joe, I thought you were going home.
What do you want to come back for? Didn't we say we were going to settle this matter to-morrow?" And he said, "How are you going to settle it? By dieherging me?" And
he said, "Well, you won't discharge me,"and he went to swipe me.(Illustrating).
Q When he swiped you or struck you what did you do?
A I cowered (Illustrating).
Q What?
A I dodged him (Illustrating).
Q Now them what next took place?
A I looked at
him, and I seen he was rushing for my revolver. I rushed for
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it, too, and we get there the same instant.
Q Both got there at the same instant?
A Yes, sir, the same minute. I got my hand on the revolver (Illustrating). HE had his hand right on the top of it (Illustrating).
Q Where was this? In the bed room?
A In the bed room.
Q Now proceed . State what followed?
A He get a
hold of me, and pulled me right off (Illustrating).
Q Pulled you where?
A He pulled me from the bed room into the kitchen. And, after he pulled me in the kitchen, he twisted me around, and tried to push me, and I says, "Joe, why don't you go. Let me alone. Go away", and he said, "No, I
won't go away. I'll kill you with your own revolver," and
I said,"Joe, what you want to kill me? I never done nothing to you."
I was trembling (The witness weeps). And he said, "No.
You want to discharge me, and I am going to kill you before you discharge me."
And he banged me, and banged me towards the closet, and always I cry for help, and I put all the strength I had in that right hand (Illustrating), and he was trying to snatch the re- volver out of my hand, and never in my life had I so much strength in that hand, because I knew my life defended upon that hand.
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MR. ELY: I object to that, to the latter part
of the answer, that he knew his life depended on that hand, and I move to strike it out.
THE COURT: Strike it out. MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q And didyou fear then for your life?
A I did.
Q And where were you when this struggle was going on, at this time?
A I was near the window, with my back to the window.
Q And did he do anything?
A He banged me to that
window, and he tried to snatch the revolver away, and he got a hold of my wrist, an twisted my arm, this way, and he bit
it (Illustrating).
Q And what happened to the window?
A He brake it.
Q Did he seize hold of your arm,do you say?
MR. ELY: Objected to, as a repetition of the witness's testimony.
THE COURT: Objection sustained. Don't re- peat. He has said so.
A (Answer continued). He twisted my arm, and bite it, and I
pulled it, and the shots went off. BY MR. LE BARBIER:
Q How many ?
A I don't know how many ring out. I
369
couldn't swear to it.
Q And then what happened?
A then what happened?
Q Yes?
A He reeled back, and he has got the revolver, and he has shot at me (Illustrating).
Q Got the revolver away from you?
A Yes, sir.
Q And shot at you?
A Yes. From my hand he get the revolfer.
Q And then what happened?
A Well, my strength was
gone, I was exhausted; I was wet with perspiration, and I fall in a chair.
Q Could you get away from him before you shot those shots?
A Pardon me?
Q Could you get away from him, before you fired those shots?
A I couldn't get away from him.
Q Did you try to get away from him?
A I try if I
could, but I can't.
Q Did you have any wrong against Ciofolo? MR. ELY: I object.
A Any what?
MR. ELY: Objected to. THE COURT: Sustained.
MR. LE BARBIER: Exception.
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BY MR. LE BARBIER:
Q Did you have any ill feeling against Ciofolo? MR. ELY: Objected to.
A No, sir.
MR. ELY: Now, if your Honor please, that is a perfectly improper question.
THE COURT: Sustained.
MR. ELY: And I ask your Honor to strike out the answer, and direct the jury to disregard it. THE COURT: Yes; strike it out. And the jury will disregard it.
BY MR. LE BARBIER:
Q Do you know Officer Tarpey?
A Yes.
Q Did you see him that night?
A (No answer)
Q (Question repeated)
A Well, if you show me where he is, I'll tell you. I see an officer.
Q No, Did you see him on the night of July 20th? MR. ELY: He says that, if you show him the officer he will tell you whether he saw him that night or not.
BY MR. LE BARBIER:
Q Did you see that officer, that night (indicating Of- ficer Tarpey)?
A Yes, sir.
Q Did you see him at your house?
A I don't remember;
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I don't think so; I don't remember all.
THE THIRD JUROR: If your Honor please, can I
ask the witness a question? THE COURT: Yes.
BY THE THIRD JUROR:
Q I heard you say that, when Joe Ciofolo left, the
first time, you say he went out, and the door closed, and there was a Yale lock on thedoor?
A Yes, sir.
Q And the attorney asked you, "And then what?" And you started to say, "My wife upbraided me"?
A My wife start to speak to me, sir.
Q Well, you said upbraid you?
A Yes, sir. THE COURT: Put the question.
THE JUROR: Well, I just wanted to see if I
heard it right.
THE FOREMAN: Well, wasn't that stricken out, if your Honor please?
THE COURT: Well it seems to come in now, by consent. The juror asked the question, and I heard no objection from counsel for the defendant.
MR. LE BARBIER: No, sir. I don't object.
THE THIRDJUROR: No, your Honor, it wasn't stricken out. It was the end of an answer.
THE COURT: Well, it is given now, without ob-
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jection, and you may consider it. BY MR. LE BARBIER:
Q Now, with that in, I ask what the wife said? MR. ELY: Object to.
THE COURT: Sustained.
MR. ELY: However, I don't care. Let it in by consent. THE COURT: Then you may tell it by consent.
A She said, "Well, I don't see why, one thing or another, there is always some kind of a trouble in this house, " and I said, " Angelina, I don't do no trouble. It is your own brother, and he come to thehouse, and he raises trouble. What's the use of blaming me, when your own brother does raise trouble? It isn't I." Then there was a knock kon the door.
MR. LE BARBIER: That's all. He's your witness. CROSS EXAMINATION BY MR. ELY:
Q Now, Calandra, when you said that, that the brother, Ciofolo, was always coming to the house drunk, your wife answered, "No, he isn,t drunk; " didn't she?
A I think so; yes.
Q Now, do you remember -- did you hear Tarpey testify at the Coroner's Court?
A I think he testified, but I
didn't hear what he said, on account of being a little deaf, sir.
373
Q Now, I don't want to talk in a loud tone of voice to you, or any louder than I can help.
A Yes, sir.
Q And, if you don't hear me, just say you don't, because I am going to talk just in this tone of voice. You understand?
A Yes, sir.
Q Now, do you remember that Tarpey said, that, on the night in question, that is, the 20th of July, 1906, he asked who did the shooting? Did you hear him say that, in the Cornoer's Court?
A Who asked me?
Q This officer, Tarpey. Do you remember that?
A Well, on the night of the 20th of July --
Q Do you understand my question?
A Yes.
Q Well then answer my question.
A Well, after all that -- THE COURT: No, just answer the qustion, briefly. BY MR. ELY:
Q All that I asked you is whether you remembered Tarpey testifying, as I asked you, in the Coroner's Court?
A Well, I want to explain to you.
Q No, I don,t want any explanation. If you don't know, say no: and if you do, say yes.
A Well, I don,t recollect, sir.
Q Well, that's all right. You don't recollect?
374
A No, sir.
Q Now you remember Tarpey coming into your house, 309 East 90th Street, on the 20th of July, 1906. after you shot Ciofolo; don't you?
A Yes.
Q And who was there when Tarpey came in?
A I don't remember who was there. I think my wife was there. I don't know.
Q Well, now, don't you remember, when Tarpey came in, he said -- asked who did the shooting?
A Well, he may have done it.
Q Now please, if you don't remember, say so,
A I don't recollect, sir.
Q I don't want you to say anything that you don't remember, at all.
A All right, sir. I don't recollect, at all.
Q And you won't say that he didn't, though you don't recollect?
A I don't recollect.
Q Now, don't you remember his asking your wife who did the shooting, and she going into the bed room, and pointing at you?
A No, sir.
Q Well, now, as a matter of fact, when Tarpey came in, you were in the bed room; weren't you?
A May be.
Q No, no. If you don't remember, say you don;t remember?
A I don't remember, sir.
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Q All right. You don't remember?
A No.
Q Now you remember that Tarpey had a conversation with you, that night; don't you?
A My dear sir, I don't --
Q No, no, just answer the question.
A My dear sir, I don't remember, sir.
Q You don't remember?
A No, sir.
Mr. ELY: Now, come right up to the rail, there, Tarpey. BY MR. ELY:
Q Now, do you see this man (indicating the officer at the rail)?
A Yes, sir.
Q And you remember seeing him on the night of the 20th of July; don't you?
A Yes, sir.
Q And you remember seeing him in your rooms there?
A He was in my room, yes.
Q And don't you remember his having a talk with you?
A I might have a talk, but I don't remember the conversation.
Q Now please. I am not asking you now for the conversation at all. But you don't you remember having a talk with this man, in your room?
A Well I remember I had some talk with him; yes.
Q Now that's it. Now don't you remember Tarpey asked you who did the shooting?
A I don't recollect.
Q You don't recollect?
A No, sir.

376
Q Don't you recollect that he asked you who the injured man was?
A He might have done it.
Q No, no. I don,t want what he might have done. He might have done a great many things. I am asking you about certain things that the People say happened, and I am asking you whether they did happen?
MR. ELY: Now, repeat the qustion to him, Mr. Stenographer. (The stenographer repeats the qustion)
A (No answer)
Q Now don't you recollect that?
A I don't recollect anything after the shooting. My head was in a twirl
(illustrating) was in confusion.
Q What did you say your head was in?
MR. LE BARBIER: In a twirl he said; going around, I suppose.
MR. ELY: Now, if your Honor please, isn,t this entirely improper, this suggestion to the witness? THE WITNESS: Going around.
MR. ELY: Now, then, Mr. Le Barbier should not suggest with such a witness as this. THE COURT: No, do not interrupt, Mr. Le Barbier.
377
BY MR. ELY:
Q Well how do you know that you were all wet with perspirtion, if your head was all in a twirl and in confusion?
A Explain me that, please.
Q You have stated that you were all wet with perspiration. Now how did you know that?
A Well, I have strained my memory to remember all that happened, that night.
Q Yes.
A And I remember so far as the shooting, and I remember I fall in the chair; and, after, I tried to recollect all I could, but I can't recollect anyting, bexause I was excited, and I was all my head in confulsion.
Q Well, now, don't you remember that you were taken around to the Police Precinct Station?
A Yes, I guess I was.
Q Well, don't you know that?
A I was in the Police Station, yes.
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Q Don't you know that you were taken around there?
A Yes, sir.
Q Well you recollect that; don't you?
A I recollect I was in the Police Station; yes.
Q Now don't you recollect seeing your revolver around in the Police Station (indicating People's Exhibit 3)?
A I don't remember if they show me the revolver or not, but I guess they done it.
Q Well I don't want your guessing, and I don't want you to say that you remember anything if you don't?
A Well
I think they showed me the revolver.
Q Now don't you remember seeing this revolver around at the Station House?
A Yes, sir.
Q And don't you remember telling them that that was your revolver?
A Yes, sir.
Q And don't you remember, now that we have talked about it, that Tarpey showed youthat revolver in the Station
House, and asked you whose revolver that was?
A I don't recollect, sir.
Q Why, you heard Tarpey testify here, on the stand here; didn't you?
A Yes, sir.
Q I say, you heard him?
A I heard part of it.
Q Wellall right. But do you remember hearing him tes-
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tify that - that when he went in to see you, and talk with you, that you were cool and calm and collected? You remember him saying that?
A I remember heraring him say that; yes.
Q But that wasn't the fact?
A Well I think my exhaustion he takes for calm. My exhaustion he takes for calm;
but I was without any strength.
Q You were without any what?
A Any strength. I had no more strength on me. I was strengthless.
Q Now do you remember that he testified that your wife was walking up and down, and calling out to you, "What for you kill my brother? What for you shoot my brother?" Did you hear him say that?
A I heard him say that on the stand.
Q You heard him say that when he was there (Indicating the witness stand)?
MR. LE BARBIER: Now if your Honor please, I protest. He says "I heard him say that on the stand", but Mr. Ely says, "you heard him say that, there, that night, did you?"
THE COURT: No, You misunderstood Mr. Ely. The qustion he asked was this, "You heard him say that when he was there (Indicating the winess stand)?
MR. LE BARBIER: Well, if I misunderstood him, that is different.
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BY THE COURT:
Q Now did you hear him say that, on the night in question?
A No, sir. BY MR. ELY:
Q Did your wife say that, on the night in question?
A No, sir. I swear --
Q No, no. You are under oath. Did that happen?
A No, sir.
Q Did you hear it?
A No, sir.
Q Well wasn't your wife running up and down there, in front of you?
A I don't recollect. I didn't bother with my wife at all.
Q You don't recollect that?
A No, sir.
Q All right. Now don't you remember, or didn't you say to Tarpey, whenTarpey came into the premises, 309 East
90th street, on the evening in question, "I am here, officer. I won't run away. I shot him. I shot him in self defense"?
A I don't recollect that at all.
Q Well, now, that is your defense here, isn't it? Your defense is self defense?
A It might be--
Q Now please. If you don't understand my question you needn't answer it?
A All right.
Q And, if the question is improper, if your counsel deems it improper, an objection will be made?
A Yes, sir.
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Q And so don't argue with me, and just listen to the question and try to answer it?
A Yes, sir.
Q And your defense here is self defense; isn't it?
MR. LE BARBIER: Objected to, on he ground that it is the defense that the atterneys put in. He is here as a witness, not to characterize his defense.
MR. ELY: I object to the question. THE COURT: He may answer. MR. LE BARBIERl Exception.
A I told my facts. I don't know what you call it.
Q Now, now, please. Isn't it?
A I told my facts, and I don't know what you call it.
Q Now do you swear that, on the night of the 20th of July, 1906, you didn't tell tarpey that you had shot him, referring to your brother-in-law, in self defense?
A I will not swear, because I don't recollect.
Q And will you swear that you didn't tell him, at the same time, "this man is my brother-in-law, and he came to my home, and was drunk, and started afight with me:"?
A I don't swear, becase I don't recollect.
Q You don't recollect anything about that?,
A No, sir.
Q Your mind on that subject is an entire blank?
A Yes, sir.
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Q And do you swear that you didn't tell him, that night, "He started to quarrel with me, nad I seen him
comingfor me, and what chance would a small man like me have with a big man like him, and I reached for the pistol, and shot him".
A I don't recollect anything about that conversation at all.
Q You don't recollect anyting about that conversation at all?
A No, sir.
Q And do you remember Tarpey's asking you how many pistol shots you shot at him, and you replied, " Two or three." Do you remember that?
A No, sir.
Q Wasn't it the fact?
A I don't know if it is a fact or not, because I don't recollect.
Q Now when was it that you came to the opinion that you have stated there as a fact, that you shot two shots, and that he shot one shot, that the deceased shot one shot?
A Well, as soon as I remember it.
Q Well, now, how long after the occurrence did it take you to remember that?
A I think, next day.
Q Oh, you remembered, that, the next day?
A Yes, sir.
Q Now you did go to the Police Station, of course, on the night of the 20th of July?
A I did went to the
Police Station.
I remember that.
Q I beg your pardon? Eh?
A I did went to the police
383 station.
Q And, when you got to the Police Station, why, you were conscious; weren't you?
A Yes; I was kind of conscious.
Q Weren't you conscious when Tarpey came into the house?
A Well I think I was; yes.
Q And, when you got to the Police Station, you made a statement there, didn't you, before the desk?
A I don't think I did.
Q Why, don't you remember telling Tarpey at any time that you would not run away?
A Well I might have done it.
Q No, no.
A But I don't recollect.
Q And that's the best answer you can make?
A I don't recollect.
Q (Question repeated).
A Yes, sir.
Q All right. Well, now, didn't you tell Tarpey, on that night, that you saw him, referring to your
brother-in-law, "coming for me, and I put my hand on the bureau, and got the revolver and fired"?
A I don't recollect.
Q You don't remember whether you told him that, that night?
A No, sir.
Q At any time?
A No, sir.
Q Well isn't that what you told here, to-day?
A What I told What? I don't understand the question.
Q Didn't you tell that here, to-day, " I seen him coming
384
for me, and I put my hand on the bureau, and got the revolver, and fired"?
A I don't think I said that, to-day; no, sir.
Q You didn't say that?
A No, sir.
Q Well but haven't you told us, to-day, that you saw him coming for you?
A He come at me, but I don't see him coming to me. He did come.
Q Well but didn't you say that you saw him coming to you? Didn't you say, to-day, in your testimony, on the direct, that you saw the deceased coming for you?
A I did not.
Q You didn't?
A No, sir.
Q Now you say you were in the bed room; do you?
A Yes.
Q And you were in bed?
A Yes, sir.
Q And you had nothing on but your shirt and your underdrawers?
A Undershirt and underdrawers.
Q They were the undershirt and underdrawers.
Q They were the underdrawers?
A Yes, the underdrawers. i understand.
Q Yes, You understand, but I want to be sure?
A Yes.
Q And how long had you been in bed?
A How long I been in bed?
Q Yes; before you heard this knocking on the door?
A Well, say about five minutes.
Q And you were there, prepared to go to sleep?
A Yes; I was preapared to go to sleep.
Q Had you the light out in the bed room?
A No; there was no light in the bed room, at all.
Q That's what I asked you. There was no light at all in the bed room?
A No; no light at all.
Q And then you say that your brother-in-law came in, while
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you were lying there in this dark bed room?
A Yes, sir.
Q And he came into the kitchen; did he?
MR. LE BARBIER: Well, I object to that question. It doesn't appear that it was dark bed room at all. He has characterized it, qualifying the light.
MR. ELY: He has just said that there was no light in the bed room, so it must have been dark. THE CORUT: Objection overruled.
MR. LE BARBIER: Exception. Now I move, may it please your Honor, to strike out the word "dark" in that question.
THE COURT: Objection overruled. Motion denied. MR. LE BARBIER: Exception.
BY MR. ELY:
Q Well, there was no light in the bed room, was there?
A Well, I bed your pardon. There was no gas lit. But, if you mean a light from the kitchen, there was no gas lit. But, if you mean a light from the kitchen, there
was a light, has- light from the kitchen.
Q Well, I didn't ask you anything about that, about any gas light in the kitchen.
A Well, if you don't give me a chance to explain --
Q (Question repeated).
A There was a light from the Kitchen.
Q But other than the light that came from the kitchen --
A Yes.
Q There was no light?
A There was a gas light in the kitchen.
Q Well now, if you know what I am going to ask you, you can answer it, or , otherwise, you had better wait for the question.
A All right, sir.
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Q But, except the light that came through the door from the kitchen, there was no light in the bed room?
A No, sir.
Q And there was only one jet lighted in the kitchen, one gas jet, wasn,t there?
A There was a light in the kitchen; two lights.
Q There were two?
A Yes, sir.
Q And then the deceased came into the kitchen; did he?
A Yes, sir.
Q And he said "Villain, I'm not drunk," or words to that offect; did he?
A Yes, sir.
Q Well now when you heard those woeds, "Villain, I'm not drunk," or words to that effect, where were you?
A I got up from the bed (illustrating).
Q Now, don't please, don,t act it, but just tell me.
You can do that, can't you?
A I got up from the bed, and stood in the doorway from the bed room.
Q Yes. You got up from the bed and stood in he door way?
A Yes, sir.
Q That is, on the threshold between your bed room and the kitchen: were you?
A Yes; and the kitchen.
Q Then how far away from you was the deceased, at that time?
A Well, he come from--
Q Now please, please, won't you just answer my question? When you stood therein front of -- on the threshold, between
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the kit chen and the bed room, how far away from you, at that time, when you first stood there, was the deceased?
A About two steps far.
Q Now what do you mean by two steps? Do you mean two paces or just --
A No, I don,t mean two paces. About this far and I stood there (illustrating).
Q Now just wait a minute. Just take that railing as the threshold, and just put yourself back even with this;
will you please (indicating).
A Yes, sir.
Q Thank you very nuch. Now we will say that that is the threshold (indicating).
A What do you mean? Threshold?
Q Well, the threshhold of the door? Do you understand?
A Yes.
Q Now how far away was the defendant?
A Where this gentleman is standing (indicating the Crier) and he come rushing from rhw kitchen.
Q Now, now please. i am asking you something else, and you say that, when you were standing there on the threshhold of the door, between the bed room and the kitchen that the deceased, when you first observed him, was as far away from you as this court attendant it?
A When I first saw him, he was rushing from the kitchen door to the door of the bed room.
Q He was walking toward you?
A Well, he was rushing.
Q Well, while he was rushing -- by that do you mean that
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he was running?
A No; he was coming (illustrating).
Q Well, was he walking?
A Well, he wasn't walking or running, but he was rushing; he was walking fast. I don't know what you call that (illustrating) when a man is coming fast. I don't know what explanation you give to
it.
Q Well he was walking fast then, was he?
A Well, if you want to give that explanation that way, if you put the explanation that way.
Q No, I want you to do it. And you say when you were standing there on the threshoold he came walking fast from the door of the kitchen?
A Yes, sir.
Q Is that right?
A Yes, sir.
Q And how far from the door of the kitchen was he when you first saw him?
A How far away the kitchen door was?
Q No; how far away from your brother-in-law were you, or how far away from the kitchen door was your brother-in-law, at the time you sy he rushed towards you?
A Well, I stood this way (illustrating) and he come rushing this way, and I back into the bed room, and he come after me.
Q No. We are getting confused. Now, Calandra, I want you to understand this. You may sit down, if you are tired, but we will still assume that you are standing there by that railing (indicating).
A No; I only stood
there --
Q Now please. You understand what I am getting at?
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And that that support or railing is the threshhold of the door between the bed room and the kitchen, in your premises? Do you understand that?
A Yes, sir.
Q Now how far from you was your brother-in-law, when you first saw him, as you stood there in the threshhold of the door?
A I told you about two steps far away.
Q But then you told me, before, that you saw him walking from the door toward you?
A Well, if you don,t let me explain --
Q Well, I am perfectly willing to have you explain. That's what I want.
A Well, I am trying to explain.
Q Well go ahead.
A And if you let me explain my own way, you can question me afterwards.
Q Thank you.
A Well, as soon as I heard him holler to my wife to open the door --
Q No, no.
A Well, as soon as I seen him coming, I backed in, and stood by the bed. MR. ELY: No, no. I object to this. I must repeat the question.
BY MR. ELY:
Q What I want to know is, how far from the threshhold of the door were you standing, when you saw your brother-in-law as he came into the kitchen?
A The first time I saw him, when
390
he come in the second time, I saw him rushing to me, and I backed back.
Q Did you see him coming from the kitchen door?
A Yes, sir; right straight to the bed room door.
Q Well, was he in the kitchen when you first saw him?
A Yes, sir.
Q How far away from you was he?
A Just about two steps.
Q Well, that's about two feet?
A Well, he was more than two feet.
Q Well, about three feet?
A Yes, about that (indicating).
Q And then you were standing there on the threshhold, and he was three seet away from you?
A Yes; but he come rushing.
Q Now you have told us that several times. Resume your seat, if you want to. Now then what happened immediately after taht?
A After that?
Q Yes. Did he say anything then, other than "Villain, you say i'm drunk"?
A "You say I'm drunk. I'm going to finish it with you, to-night"(illustrating).
Q Now you remember those words with great accuracy; you are sure that those are the words that he used?
A Yes, sir.
391
Q "I'm going to finish with you, to-night"?
A Yes; "and I'm not afraid of you, and I'm not afraid of your own revolver".
Q Is that what he said?
A As far as I remember, yes.
Q "I'm not afraid of you, and I'm not afraid of your own reovlover"?
A Yes, sir.
Q And were standing there, in your night clothes?
A No; I wasn,t standing there, at that time.
Q Oh, you were not there?
A No, sir.
Q Now, don't get excited.
A No, I don,t.
Q I don't want to excite you in the least. Now what had you done, if you were not standing there, when he said
these words that you have just stated, "I'm going to finish you, to-night. I'm not afraid of you. I'm not afraid of your own revolver"?
A I stepped out, back, and laid on the bed, this way (illustrating), and he come into the threshhold.
Q And did he stop there?
A He get shold of me (illustrting)>
Q Now please. Did he stop there?
A He did not.
Q He didn't stop there?
A No, sir.
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1
Q Now, when you had appeared there, at the threshhold of the bed room door, you didn't have anything in your hands; did you?
A No, sir.
Q Do you know how it was that the defendant-- that the deceased referred to any revolver?
A Well, because I
guess he knows that I was in the habit of carrying a revolver.
Q Did you have any permit to carry a revolver?
A No, sir.
MR. LE BARBIER: I move that that answer be stricken out, as incompetent. THE COURT: Denied. I will let the answer stand.
MR. LE BARBIER: Exception. BY MR. ELY:
Q Now then you saw the deceased coming towards you, and you got in and lay down on the bed; did you?
A I
didn't laid down on the bed.
Q Excuse me; what did you say, a moment ago? MR. ELY: Please repeat that, Mr. Stenographer.
(The previous testimony of the witness is repeated by the stenographer.)
A Well I beg your pardon. I didn't mean that. I stood by the bed. (Illustrating).
Q Oh, you stood by the bed?
A Yes, sir.
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2
Q And your memory is better now than it was a few minutes ago on the same subject; is it? MR. LE BARBIER: I object to the characterization by the District Attorney.
THE COURT: Overruled.
MR. LE BARBIER: Exception.
A No, it isn't. I don't explain, because my English is very bed.
Q Eh?
A My English is very bad.
Q No. no. your English is very fine. But that is the explanation that you make of the difference in your testimony, then, that your English is bad?
A Yes; I mean to say I am standing by the bed, instead of saying I am laying there.
Q Well what happened after that?
A He took a hold of me (Illustrating).
Q Who? The deceased?
A Yes; and he shake me and throw me to the closet (Illustrating).
Q To the closet?
A Yes, sir.
Q And now you say he took a hold of you, and shook you, and threw you to the closet? Did he let go of you, when he threw you to the closet?
A He did.
Q And how far away did he throw you?
A (No answer).
Q Eh?
A Well, if you willshow me (Indicating the
394
3 diagram).
Q No. You know. Tell me?
A How far he was from me? (The question is repeated by the stenographer.)
A Just about two steps back.
Q Well did you hit the closet?
A I banged against the closet, I fell against the closet. There is a little step there.
Q No; I didn't ask you about at step. then you did hit up against the closet?
A Yes, sir.
Q And the closet was on the side of the room opposite the bed; was it?
A Yes.
Q And he went into the room, and caught you by the bed, did he, as you were standing by the bed?
A Yes, as I
am standing by the bed.
Q And he caught you, and shook you, and threw you across theroom to the closet?
A Yes, sir.
Q All the way across the room?
A Yes; it ain't very far.
Q And the bed -- look at this diagram, and see if you understand it. Do you understand that?
A That's the--
Q Now this is the bed room, do you say (Indicating)?
A Yes, sir.
Q And the bed was on this side (Indicating)?
A No, sir; on this side; further to here (Indicating). There was
395
where the bed was (Indicating).
Q Now can you read English?
A I do; a little.
Q Now do you see that there, "closet"?
A Yes, sir.
Q That is the "closet"? Is it?
A Yes.
Q And there is another "closet"?
A Yes, sir.
Q And was the bed on the same side as the closet?
A Yes, sir.
Q And was it right up against -- whereabouts was the bed? Where do you say it was?
A Right here (Indicating). There is the window, and right there was the bed (Marks the diagram).
Q Well, then, the bed was on this side (Indicating)?
A No, sir; right across the closet.
Q Now, you make the bed as you saw it?
A Pardon me?
Q I say, you make the bed as you say it was there?
A That way (Illustrating).
Q Now, mark that "bed"?
A Yes, sir.
Q Now all that is "bed", is it?
A Yes, sir.
Q Now isn't it fact that the head of the bed was away up here, at that wall (Indicating)?
A No, sir.
Q Now where was the bureau?
A Right there (Indicating).
Q Well, put the bureau down, too?
A Yes, sir. (The witness marks the diagram).
396
Q Well, mark it "bureau". now, please?
A Yes, sir.
Q Now, thank you. And itmwas on this bureau that you had the revolver; was it?
A Yes, sir.
Q Away back here (Indicating)?
A Yes. sir.
Q Now this is your mark; is it ?
A Yes, sir.
Q This is the bureau (Indicating)?
A Yes, sir.
Q And that is in the extreme southerly side of the bed room; in the extreme south-westerly side of the bed room?
A I don't understand what you say, now, sir.
Q All right. Then you needn't answer it. But there the bureau is (Indicating)?
A Yes, sir.
Q Just right there?
A Yes, sir.
Q And there is where it was, that night?
A Yes, sir.
Q And the pistol was on the bureau?
A Yes, sir.
Q And here was the bed, right there, as you heve marked these four lines?
A Yes, sir.
Q And you were standing right here, at the bed (Indicating)?
A Yes, sir.
Q And he took you, and fired you, leaving go of you, across the room, up to which closet?
A That closet
(Indicating).
Q Well, you marked that :"closet" yourself?
A I did, there (Indicating).
397
Q Mark it with a "Y": will you, please?
A Yes, sir.
Q That's it. Thank you. And that's where he threw you?
A Yes, sir.
Q And when he threw you there, where was he standing?
A About there (Indicating).
Q Well put a "D" there, for "defendant"?
A Yes, sri.
MR. ELY: That's right. Thank you. Now, if your Honor please, I'll show you. The defendant says this is a bed (Indicating). and he makes it come right up to this partition, you see. And that was the bed. And then the bureau it is away down here, in this end. That, according to points of the compass, would make it in the
southwest corner. And he says that the deceased was here, caught him here (Illustrating), and threw him bodily across to here (Indicating).
THE COURT: Now, let the jury see it.
MR. ELY: Now, gentlemen of the jury, the defendant says that here was the bed, in this end of the room, against this partition, and he has drawn these lines here (Indicating), and has marked them "bed". Do you all see it?
And he says the deceased caught him about here (Indicating), and threw him, the defendant. here, to
398
the closet, the second closet, letting go of him; and that is where the deceased stood when eh caught the defendant, and threw him, the defendant, over to the point "Y".
MR. LE BARBIER: Yes; that's right.
THE FIFTH JUROR: Is that figured out in half inches to the foot? MR. ELY: No. Not yet. Didn't you just see him mark it?
THE FIFTH JUROR: Then give us an idea of the measurement.
THE COURT: Well, the scale is marked on this diagram. From that you may get a sufficient idea, perhaps. MR. ELY: And the bureau was over there, and the pistol was on the bureau.
THE JUROR : Well, the bureau may have been nearer than that. I am speaking of the distace. MR. ELY: He has just marked it himself, Mr. Juror. Here is his mark (Indicating).
399
1
BY MR. ELY:
Q Now, after the deceased, as you say, threw you bodily over to the closet, leaving go of you, what happened?
A I talked to him.
Q Then you talked to him? And how far away from you was he when you were talking to him?
A One step back.
Q Just one step back?
A Yes, sir.
Q Then had he advanced toward you, after he had thrown you?
A He stand still (illustrating).
Q He stood still (illustrating).
Q He stood still?
A He stood still.
Q And he didn't advance toward you, after he had thrown you there against the closet?
A It was a case of a few seconds.
Q Oh, in a few seconds, he advanced again?
A No, sir, in a few seconds, I talked to him. I said, "Joe --"
Q No, no. I didn't ask you what your conversation was. But after he had thrown you, as you say, against this second closet, or the further closet in theroom, away from the kitchen, he stood there, and talked to you for
a few seconds; is that right?
A I talked to him first, and he replied.
Q Now, please.
A conversation between you, lasting a few seconds occurred while he was standing there; is that right?
A Yes, sir.
Q And did you strike up against the closet?
A I did.
400
2
Q What part of your anatomy struck against the closet?
A I don,t remember what part of my anatomy.
Q And you don.t know whether you hit it with your head or knee or nose or what?
A I don't know. I banged against the closet this way (illustating). I guess my hands went against the closet.
Q Well you don't recollect what part of you did hit the closet?
A No, sir.
Q And that part that did hit, didn't render you unconscious at all; did it?
A No, sir.
Q Well, after a few seconds, what happened?
A I told him--
Q No, I am not asking for any conversation. what happened next. what occurred next?
A Well there happened some conversation then.
Q All right. then skipping the conversation. what hapened after that?
A He swat me.
Q What do you mean when you say he swat you?
A He didn't catch me. He strike me, but he didn't catch me (illusrtrating). He strike at me but he didn;t catch me.
Q He didn't touch you?
A No, sir, not touch.
Q And then what happened?
A I turned around, and I seen he was rushing for the revolver.
Q Now wait a minute. How could you see that.
401
3
A As I turned around, he was stand right there (illustrating).
Q Well now, the revolver was on the bureau?
A Yes.
Q And there was no light in theroom, except that which came from the kitchen?
A Yes, sir.
Q There was no light in theroom, except that which came from the light in the kitchen?
A Yes, sir.
Q It was a reflected light, if you understand what that means?
A Reflected light from the kitchen, yes. There was two gas jetsin the kitchen, lighted.
Q Yes. Now you saw this deceased running toward the bureau then; did you?
A Yes.
Q And what did you do?
A What I done?
Q Yes.
A I rushed forn the revolver, too.
Q Oh, you ran toward the bureau, too, did you?
A Yes; I did rush for the bureau.
Q And had the deceased been in your room when you had been underssing, that night?
A Yes; when I was underssing, and at the time he was in the room.
Q Then he was in your room when you were underssing?
A What's that question again? I don,t understand.
Q (Question repeated)
A No, I don,t understand. He wasn't in my room when I was undressing.
Q And he didn't see you take the revolver out of your
402
clothing, and put it anywhere, that night, did he?
A No, sir.
Q And it was dark in this end of the room here, wasn't it? (Indicating)
A There was a light from the kitchen.
Q I know. But that light didn't illuminate the room sufficiently to enable you to see well in the back of the room?
A Yes; because there was a window right there (indicating).
Q Wait a minute. To see well down at the back of your bed room; did it?
A Yes, sir.
Q And he ran down there, and you ran down there too?
A We both rushed.
Q When what happened then?
A As soon as we b0th rushed, I got the revolver (illustrating).
Q Show me how you got the revolver?
A (Illustrating).
Q And you knew where it was exactly, didn't you; you had put it there?
A That's how I got the revolver
(illustrating).
Q You had put the revolver on the bureau, and you knew exactly where it was?
A Yes; suppose that is the bureau
(indicating).
Q Now, I am not asking you anything about that at all. I merely asked you if you knew where the revolver was on the bureau. You had put it there that
eevening, hadn't you?
A I did put it there, that evening.
403
Q And you knew where it was, at the time you were rushing for it?
A I did; and I saw it and he saw it. MR. ELY: I object to that, and move to strike it out.
THE COURT: Strike it out. MR. LE BARBIER: I except. BY MR. ELY:
Q And then tyou grabbed the revolver from a point where you knew it was?
A I rushed, and grabbed the revolver
(illstrating).
Q You got it first?
A No; we got there the same instant.
Q Well, now, you have shown us how you had your hand on it; haven't you?
A Like that (illustrating).
Q And how did he have his hand on it, if he had it at all?
A That way (illustrating).
Q Now, then, he had his hand on your hand?
A And the revolver, too.
Q (Question repeated)
A (Answere repeated)
Q (Question repeated)
MR. LE BARBIER: I submit that's an answer.
A And he had his hand on my hand and on the revolver, too (illustating).
404
BY MR ELY:
Q And then what happened?
A He took me, and pulled me out in the kitchen (illustrating).
Q He pulled you all the way through his room (indicating)?
A All the way to the kitchen.
Q To the kitchen?
A Yes, sir.
Q And then what happened?
A He twisted me around (illustrating).
Q Well wait a moment. Yes, go ahead. He twisted you around?
A And pushed me, and pushed me, and pushed me against the window (illustrating).
Q And then what happened?
A He banged me through the window glass.
Q What did he bang through the window glass? What past of you?
A The back.
Q Yes. And had he hit you at all?
A Beg pardon?
Q Had he struck you, at all?
A The struggle, yes, sure.
Q Well what hand did he hit you with, Calandra?
A He struggle with me. He didn,t swat me.
Q Now, that is striking a blow (illustrating). Did he hit you?
A NO. While there was a struggle, no.
Q No; did he hit you at any time?
A He strike at me,
405
and I dodge it (illustrating).
Q Now, that's a blow (illustrating). Now did he hit you at any time?
A No, sir.
Q All that he did then was, as you say, to catch you by the hand that held the revolver, and then struggle out into the kitchen, and run you up against the window; is that right?
A Yes; we struggled in the same time.
Q Yes. And, after you got up to the window, what happened?
A He banged me against the window (illustrating).
Q Show that again.
A He banged me against the window (illustrating).
Q He banged you against the window?
A Yes.
Q And then what happened?
A He saw I won't let go of the revolver.
MR.ELY: I object to that, and ask to have it striken out. THE COURT: Yes. Strike it out.
BY MR. ELY:
Q Then tell us what happened. That,s giving a conclusion?
A Well, he twisted my wrist.
Q Which wrist?
A This wrist (indicating the right wrist); ans twisted that arm, too.
406
1
Q Now wait a minute. He had you by the right handdid he?
A Yes.
Q Now that's the way you had the revolver; is it, (illustrating), like that?
A Yes, sir.
Q Like that (illustrating)?
A Yes, sir; and he had his hand that way (illustrating).
Q Now then, twist my arm, as he twisted yours?
A Yes, sir; (illustrating).
Q And did he bite it too?
A Yes.
Q Now show me. You needn't bite hard?
A That way (illustrating).
Q And what happened then?
A I twisted my arm back (illustrating).
Q Well show me what he did. You have shown me how he bit. Now how did he twist your arm?
A No, I twisted my arm. He twisted it and bit, and I then twisted my arm this way (illustrating). I had the revolver this way,
and he twisted my arm, and bit (illustrating).
Q Yes. We've had the bite.
A And then I pulled it (Illustrating).
Q And you got it away?
A I had the pistol all the time.
Q No. You got you hand away?
A No; he always held me.
407
2
Q He washolding still?
A Yes, sir.
Q And then it was that you shot; was it?
A And the other hand is trying to pull the revolver, that way
(Illustrating).
Q And then you shot?
A And when I twisted my arm around, the shot flew off.
Q And then you shot?
A I didn't shot. The shot go off.
Q Well but didn't youtell us that, when you did shoot, you thought you were in danger of your life?
A I was.
Q And then you shot?
A No, I didn't shot. I twisted my hand, and the shots go off (Illustrating).
Q And then it was shot by accident, the pistol?
A I don't know.
Q But you pulled the trigger?
A I don't know. When I twisted my hand around, the shots went off
(Illustrating).
Q How many shots?
A I don't remember. I guess two or three; I don't remember.
Q Two or three?
A I don't remember. I couldn't recollect. I guess it was two shots, I don't remember.
Q Well, but why did you tell me two or three, a minute ago?
A Because I didn't recollect, how many shots went off, that minute.
Q And then what happened. Did he get the revolver away
408
3
from you?
A Yes.
Q And then it was that he shot at you?
A No; he reeled back (illustrating).
Q No, don't do that. You may lose your balance. He reeled back?
A Yes, sir.
Q And then what happened? He shot at you?
A Yes, sir.
Q Did you see him standing off there, after reeling back, and talking deliberate aim at you (Illustrating)?
A No; he didn't take no aim at me; he reeled back, and shot (illustrating).
Q And did he shoot up in the sir, like that, or shoot at you (illustrating)?
A No. I'll show you. He pulled the revolver away fromme, and he reeled back, and shot (illustrating).
Q Well, did he shoot up in the air?
A I don't know how he shot. He reeled back, and shot. That's what I saw
(illustrating).
Q And you say he didn't take any aim at you?
A I don't know if he take aim or not. He reeled back and shot
(illustrating).
Q And that's all you know about it?
A Yes.
Q And do you remember your wife asking the deceased about his raiment, which was burning there, at this time, over the stomach?
A I don't recollect that, at all.
409
Q And her saying, "Is it a cigar"? And he said, "No; I am shot"?
A I don't recollect that.
Q You don't recollect that, at all?
A No, sir.
Q Now don't you remember when you were taken out-- when Tarpey came and took you out into the hall, where your brother-in-law, the deceased, was lying?
A I don't recollect.
Q You don't recollect that at all?
A No, sir.
Q Well now, as you have told us, a little while ago, you have owned this revolver for how many years? Nine years?
A What, that revolver?
Q Yes?
A No; I only got that revolver about four yyars.
Q About four years?
A Yes, sir.
Q And you knew how many chambers the revolver had; did you?
A I think there is five chambers there.
Q But I say, you did know then?
A Yes, sir.
Q And do know now?
A Yes, sir.
Q And it has five chambers?
A I think so.
Q And you knew that, if three chambers only were shot, that would be two left; didn't you?
A I heard that, in court.
Q What's that?
A I heard that in court.
Q No, no. I am not asking you that, at all. You loaded this revolver yourself; didn't you?
A Yes, sir.
Q And you did put five cartridges in it?
A Yes, sir.
410
Q And you knew, on the night that you took it from the bureau, that it had five cartridges in it?
A Yes, sir.
Q And, after you had heard three shot out of it, you knew that there were two left; didn't you?
A Yes.
Q And after you say that the deceased staggered back, adn shot one shot --
A He--
Q Excuse me. Which you say you don't know was aimed at any body, why, you knew there were still two shots in the revolver; didn't you?
A I didn't know how many shots was left in the revovler, at the time, sir.
Q You didn't know?
A No, sir.
Q But you have told us that youshot two or three, and that then you heard another shot?
A But I didn't know how many shots I had shot, because I was too excited.
Q Now do you mean to tell me now that you don't remember how many shots you shot? Is that right?
A Not that I
shot, but the shots, while I had the revolver in my hand, and he had his hand on the top of it.
Q Now, after the one shot that you say the deceased shot, when he was not aiming at you, why, the deceased went out of the room; didn't he?
A I don't recollect what he done.
Q Why do you mean to say that? You were there?
A I was there, but -
-
411
1
Q And you have just told the jury, have just given to the jury, a very detailed description of everything that occurred up until the time that, as you say, you saw the decurred fire a shot?
A Yes, sir.
Q Then you don't remember anything that followed?
A I remember I fell on the chair.
Q Now please. (Question repeated)
A Yes; I remember I fell on the chair; I remember that I was exhausted, without any strength, you know, wet with perspiration; and I had no more strength in me than a fly after. Then my mind went all in confusion, and was in a blank, and I don't know what I done afterwards, I don't remember.
Q Well how long did that blank continue?
A Understand, not a real blank. I was all in confusion. I didn't know what I done.
Q Now, wait. I am taking your own words. How long did the blank continure?
A Well, I don,t know. I was all in confusion, until the next morning.
Q Well, what is the next thing that you recollect, after you fell into the chair, and your strength had departed, adn your mind was a blank, and you were all wet?
A Well, I recollect that I was dressed.
Q That you were dressed?
A That I dressed.
Q When do you recollect that?
A I recollect I went in
412
2
the bed room, and dressed, and put some kind of clothes on, and then --
Q Wait, wait, please. Did you go in and do that, and recollect that you were doing that, the same night, or remember it, the next day?
A I did remember it, the next day.
Q You only remembered that, the next day?
A Yes, sir.
Q And, when you got to the station house, where you say you saw the pistol, you didn't recollect whether you were dressed or not?
A I couldn,t tell if I was dressed or not, that minute, no, sir; and I couldn,t tell you
what I had on, neither.
Q And you didn't know but that you were still in your undershirt and drawers, without your socks?
A I couldn,t tell you, in that same minute, what I had on; no, sir.
Q And when did you recollect that you did have your shirt and socks and shoes and other clothing on?
A I
remembered that, the next morning.
MR. ELY: Well, if your Honor please, I won't be able to conolude with this witness. THE COURT: Very good.
Gentlemen of the jury:
Do not talk about this case, or permit any one to talk with you about it; or form or express
413
any opinion thereon, unti8il the case shall be finally submitted to you. Be here promptly, at 10:30 in the morning, gentlemen.
(The trial was then adjourned until Tuesday morning, October 23rd, 1906, at 10.30).
414
Peo. vs. Calandra. TRIAL RESUMED.
New Youk, October 23rd, 1906.
BIAGIO CALANDRA, the defendant, being recalled for further cross-examination, testified as follows: CROSS EXAMINATION CONTINUED BY MR. ELY:
Q Now this conversation that you say you had with the deceased, in your bed room, on the night of the shooting, after you had been -- after you had begun to struggle, you and the deceased, was this conversation carried on -- in what language was this conversation between you carried on?
A I don't quite recollect, but I think it was in the English language.
Q Why, you told me that you recollected what was said, and you told your counsel, with great detail, just what was stated by this deceased; haven't you?
A I did.
Q And do you mean now to tell the jury that you don't recollect what language this conversation was conducted in?
A What? During the struggle?
Q That has been my question all along. I haven't been asking you anything else but that.
A I didn't understand when you asked me.
MR. LE BARBIER: I submit that he should be made to understand the question. The question should be plain. He says, does he mean to state?
415
That is not a proper question. He should ask for the fact. THE COURT: I overrule your objection.
MR. LE BARBIER: Exception. BY MR. ELY:
Q (Question repeated)
A I want to know what time of the struggle you mean.
Q Now, just begin again, if you are in doubt tell us everything that was said in Italina. and everything that was said between you and the deceased in English, or in Italian?
A Well, I'll try, to the best of my memory, but I can't say every word that was said in English and in Italian.
BY THE COURT:
Q Did you talk in English or in Italian that night?
A I beg pardon, your Honor; we talked in both languages.
Q In both?
A Yes, sir.
BY MR. ELY:
Q Now in what language did you talk when the struggle occurred?
A In English.
Q And did you talk in English all through the struggle?
A All through the struggle; yes.
Q You are sure of that now; are you?
A Yes, sir.
Q And why is it that you didn't recollect, a minute ago, whether it was in English or in Italian?
A Well, I
didn't
416
understand what time did you mean, sir.
Q Oh, then you recollect that, before the struggle commenced, you had been talking in Italina?
A Yes, sir.
Q With the deceased? But, after the struggle sommenced, that it was nothing but English?
A He started
talking--
Q Now, please, will you answer that question?
A Now, we had a talk in both languages.
Q Now, don't you understand my question?
A Yes.
Q Then please answer it, as I have asked it.
A I don't understand. (the question is repeated by the stenographer)
A Yes.
BY MR. ELY;
Q How, you know Officer Stein; do you? MR. ELY: Come up here, Officer Stein. BY MR. ELY:
Q Do you know this officer (indicating)?
A Yes, sir.
Q And when did you see that officer for the first time?
A When I seen him? Yes.
Q Yes?
A I seen him on the same night this thing happened.
Q And where did you see him?
A In my house, in my apartment.
Q What?
A In my aprtments.
417
Q This officer (indicating as before), you saw this officer at your apartments?
A I ain't quite sure, but I
think so.
Q And what time did you see this officer at your apartments?
A I don't recollect.
Q Did you see him anywhere else than at your apartments, on the night in question?
A I think I saw him in the station house.
Q That is, on the 20th of July?
A If I remember right, I think I saw him in the station house.
Q And now that you have thought the matter over, you still think that you saw this officer, Stein, on the night of the 20th, at your house?
A I couldn't quite recollect. I think I saw him in my house, but I don,t recollect after the things happened; I couldn't swear to it.
Q Well, now, you do recollect, though, that you saw him at the Police Station?
A I think I did; yes.
Q Well, now, you had some conversation with him there; didn't you?
A I don't recollect, sir.
Q Well don,t you remember that this officer said to you, asked you, what was the trouble, and you answared,
"My brother-in-law came to my house, drunk. He came into the bed room to fight me. I was in my underclothes. I
am a cripple, and I took the pistol in the fight, and it went off"?
A I don't
418
recollect any of that converstaion, sir.
Q You don't recollect a thing of that conversation?
A No, sir.
Q What?
A No, sir.
Q And do you recollect -- will you swear that that conversation didn't take place?
A I wouldn,t swear one way or the other.
Q Now was this conversation held by you with this officer, "I says," that is, the officer says, "to the defendant, 'Well, was there a woman in the case? '" And you said, "No, family trouble." "And I said to the defendant, 'you may as well tell me, '" and you said, "Well, I won't speak no more until I see my counsel."? Did you have that conversation with the officer?
A I don't recollect, sir.
Q You won,t swear that you didn't have it then?
A I won't swear one way or the other.
Q Now isn't it a fact that at any time you refused to answer the questions about this case, until you had the benefit of a conference with counsel?
MR. LE BARBIER: I object ot that; that that is a collateral matter, and the District Attorney must be bound by the answer.
THE COURT: He may answer. Objection overruled. This is cross examination.
419
MR. LE BARBIER: Exception. BY MR. ELY:
Q Go on and answer that question.
A Well, I remember that I went out on bail. MR. ELY: I object to that, and ask to have it stricken out.
THE COURT: Strike it out.
(The question is repeated by the stenographer)
A I did refuse to answer to Assistant District Attorney Cardozo.
Q Well, is he the only persons to whose questions you refused to answer? MR. LE BARBIER: Objected to , as immaterial, irrelevant and incompetent. BY MR. ELY:
Q Did you ever refuse to answer question from any one else but Cardozo?
MR. LE BARBIER: Objected to, as incompetent.And on the further ground that the witness has a perfect right to state that he will not talk, except by advice of counsel.
THE COURT: Objection overruled.
MR. LE BARBIER: I except. And I further object that this is cellanteral matter, and that the
420
District Attorney must be bound by the answer. THE COURT: Well, that has not arisen yet.
MR. LE BARBIER: But you held me very close, may it please your Honor, on the examination in chief. THE COURT: But this is the distinction, that this is not new matter.
MR. LE BARBIER: But it wasn,t developed in my direct examination, your HOnor; and your Honor held me very close to that.
THE COURT: I will overruled the objection. MR. LE BARBIER: Exception.
BY MR. ELY:
Q (Question repeated)
A The Magistrate asked me, the next day that I was arrested, and I waived examination. MR. LE BARBIER: I move to strike out the answer, as immaterail, irrelevant and incompetent, and no part of the
cross examination or the examination in chief, and because it is collateral matter. THE COURT: He may answer.
MR. LE BARBIER: Exception. BY MR. ELY:
Q Did you ever refuse to answer anybody else?
MR. LE BARBIER: Objected to, as before, and as collateral matter.
421
THE COURT: He may answer. MR. LE BARBIER: Exception.
A I don't recollect.
MR. LE BARBIER: I now move to strike out the answer, as incompetent, immaterial and irrelevant. THE COURT: Is that consented to, Mr. Ely?
MR. ELY: Why, no, sir.
THE COURT: Then I will deny the motion. MR. LE BARBIER: Exception.
BY MR. ELY:
Q Now, did you ever before the 22nd day of July, 1906, tell either officers Stein or Tarpey that the deceased had attempted to bite you, had bitten your wrist?
A I don,t recollect if I ever did.
Q Now you told me, and you told your counsel that, you knew on the night of the 20th, during this struggle, that the deceased had attempted to bite your wrist?
A He did bite my wrist.
Q Now, excuse me. Answer that question.
A He did bite my wrist.
Q Well, you did tell me that, and you did tell your counsel didn,t you, that, on the night of the 20th, the deceased had attempted to bite your wrist?
A He did bite my wrist, yes.
Q No, no. I am not asking you that. You have said that.
422
I am asking you if you haven't told both me and your counsel that?
A Yes, sir.
Q And you knew that this attempt had been made, on the 20th; didn't you?
A Yes.
Q And you were perfectly well aware of that before, as you say, your head got in a twirl, and you got relaxed, and you sank into a chair?
A I wasn't aware, at the time, that my head was in a twirl.
Q No. But I ask you before that, before that, you knew, before that, during the struggle you knew --
A Yes;
during the struggle.
Q And you don't remember when you first told either officer Tarpey or officer Stein that this attempt had been made to bite you by the deceased?
A I don,t recollect whether I told him. I recollect my lawyer called my attention to it, Mr. Baker, next day.
Q Where?
A In the Yorkville Police Court.
Q So it was your lawyer that suggested it, was it?
A My lawyer called my attention to it.
Q Was your lawyer there when the occurrence happened?
A No, sir. Mr. Baker, next day--
Q That's all. I didn't ask you any more. Now he wasn't there when the occurrence happened, is all that I asked you.
423
A Very well, sir.
RE-DIRECT EXAMINATION BY MR. LE BARBIER:
Q What kind of a bed was that, Calandra?
A The bed?
Q Yes, the bed?
A A brass bed, with the bars.
Q Just bars?
A Large bars in brass.
Q Did the light also show through the sash window?
A Yes.
MR. ELY: I object to that, and I ask to have the answer stricken out, and the witness again cautioned not to answer questions when the objection is made.
THE COURT: I will caustion the witness not to answer question when objection are made. Don't be too swift to answer, when objection are interposed.
Go on.
MR. ELY: The answer is stricken out? THE COURT: Yes.
BY MR. LE BARBIER:
Q Was there anything on the bureau? MR. ELY: Objected to.
THE COURTL: Allowed.
A Yes, sir.
424
BY MR.LE BARBIER:
Q Well, what?
MR. ELY: Objected to. THE COURT: Allowed.
A Well, articles of toilet, of white porcelain, crockery.
Q What did you say? White what? What did you say?
A White crockery vessels, for the toilet; what they use on the bureau. You understand what I mean? I am trying to explain.
BY THE COURT:
Q White toilet articles, you say?
A Yes, sir.
Q Were they made of silverware or earthenware?
A Of crockery.
Q (Question repeated)
A Earthenware. BY MR. LE BARBIER:
Q Was there a covering on the bureau?
A Yes.
Q What was the color of it?
A White.
Q What kind of a revolver is that?
A A black revolver.
Q Is it a self-acting, hammerless revolver?
MR. ELY: Objected to, as the revolver speaks for itself, and it is in evidence. MR. LE BARBIER: I want it for the record; I want it on the record.
THE COURT: I will sustain the objection. The
425
revolver being in evidence, the jury can judge for thenselves what the nature of it is. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q After your arrest, when was it you first saw Mr. Vreeland?
A On Monday, I think.
Q Did he see your wrist, at that time?
MR. ELY: I object.
BY MR. LE BARBIER:
Q Did he see your wrist, that Monday? MR. ELY: I object.
BY THE COURT:
Q Do you know whether or not he saw it?
MR. LE BARBIER: Yes, I will withdraw the question, under your Honor's suggestion. BY MR. LE BARBIER:
Q Do you know whether he saw your wrist, that morning?
A Yes.
BY MR. COURT:
Q How do you know it?
A He saw it.
Q How do you know it?
MR. ELY: I object. There has been no testimony as to Vreeland, at all. It is Baker that the defendant spoke about.
426
THE COURT: Then I will withdraw my question, and allow you to proceed, Mr. Le Barbier. BY MR. LE BARBIER:
Q How do you know? MR. ELY: I object.
MR. LE BARBIER: This is as to the fact of knowledge, your Honor. THE COURT: I understand. This is new matter, and I will allow it. MR. ELY: I object to it, as not proper re-direct
BY MR. LE BARBIER:
Q How do you know that Mr. Vreeland saw it?
A He took my wrist, and looked at it, (illustrating).
WALLACE N. VREELAND, a witness called on behalf of the defense, being duly sworn, testified as follows: DIRECT EXAMINTATION BY MR. LE BARBIER:
Q How old are you?
A 41.
MR. ELY: Now, will you kindly caustion the witness to wait until I have had an opportunity to object?
THE COURT: Mr. Vreeland, he somewhat slow to answer the questions, so that objections may be inter-
427
posed, and ruled on.
THE WITNESS: Yes, sir. BY MR. LE BARBIER:
Q What is your business?
A Attorney and counsellor at law.
Q Where?
A In this borough, at No. 31 Nassau Street.
Q How long have you been in business?
A I have been practicing law for 17 years, and upwards.
Q Yes. Are you with any firm, Mr. Vreeland?
A I am associated with the firm of Baldwin & Blackmar.
Q With offices where?
A 31 assau Street.
Q Do you know the defendant?
A I do.
Q How long have you known him?
A Four or five years.
Q Did you see him after this occurrence, on 90th Street?
A I did.
Q Were you present at the shooting?
A I was not.
Q How long after the shooting did you see him?
A The Monday following, July 23rd.
Q Where?
A At the prison in 121st Street, the counselroom.
Q Did you observe his physical condition?
A I did.
Q More particularly with reference to his wrists?
A Yes.
Q What did you observer?
A His wrist showed a succession
428
of wounds (illustrating), on the outer side of his right wrist, the side nearest the little fingeer, and
arranged in circular fashion, one being on the upper side of his wrist, and another on the other side. Those wounds appear to me to have been --
MR. ELY: I object. I object.
THE COURT: I sustain the objection to appearances. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q Extending over a distance of about how much?
A Oh, I should say about two inches in length.
Q What kinds of wounds were they?
MR. ELY: Objected to. BY MR. LE BARBIER:
Q If you know.
A They were-- MR. ELY: I object.
THE COURT: He may describe them, and tell us anything of which he has personal knowledge concerning them.
A They were in process of healing. Each had a scab; each, in size, was approximately an eighth of an inch. To the best of my judgment they were--
MR. ELY: NO; I object.
THE COURT: No; we don't want that.
429
BY MR. LE BARBIER:
Q Well, did you see them after that again?
A I did.
Q How long after?
A I saw them on the Wednesday following, when I made an application-- MR. ELY: Objected to.
A (Answer continued) Before Magistrate Walsh --
MR. ELY: I object to any application that he made.This witness must know that this testimony isn't competent. The Wednesday following, is proper, but the rest of the answer is improper; and I ask that it be stricken out, and the witness cautioned.
THE COURT: It may be stricken out. BY MR. LE BARBIER:
Q Now you say you saw them on Monday?
A Yes.
Q And you saw them again on Wednesday?
A Yes.
Q Now, had they gone from that wrist to the other wrist? MR. ELY: I Object to that.
THE COURT: The question is not altogether clear to my mind. MR. ELY: The question is improper, any way.
THE COURT: Change the form of it.
MR. LE BARBIER: He is your witness, Mr Ely.
430
CROSS EXAMINATION BY MR. ELY:
Q How long have you been counsel for this defendant?
A Ever since I first knew him.
Q Well, I don,t know about that. (Question repeated) How long, Mr. Vreeland?
A About four years.
Q And you have had frequen business with him, during the four years?
A No; I have had some.
Q Well, you have had some business with him every one of the four years that you have known him; haven't you?
A I have seen him every Year during the years that I have known him.
Q I didn't ask you that.
MR. ELY: And I ask to have it stricken out, and ask to have my question repeated. THE COURT: Strike it out. It seems not to be directly responsive.
MR. LE BARBIER: Exception.
(The question is repeated by the stenographer)
A I couldn't say positively. I doubt it.
Q You are interested in this case; aren't you?
A I certainly am. RE-DIRECT EXAMINATION BY MR. LE BARBIER:
Q Are you one of the counsel in this action?
A I am.
431
THE COURT: Oh, he has stated that, Mr. Le Barbier. MR. LE BARBIER: That's all, sir.
LUIGI RUSSO, a witnesscalled on behalf of the defense, being duly sworn and examined through the Official
Interpreter, Benedetto Morrossi, testified as follows: DIRECT EXAMINATION BY MR. LE BARBIER:
Q How old are you?
A 66.
Q What is your business?
A Grocery store.
Q Did you know Joseph Ciofolo, in his lifetime?
A Yes.
Q Was he any relation of yours?
A He was my son-in-law.
Q Do you know other people who knew him?
A A sufficient number of persons. MR. ELY: He said "many people".
MR. LE BARBIER: I will agree that he said, "many people". BY MR. LE BARBIER:
Q Do you know what his reputation was for peace and quiet? MR. ELY: Yes or no, that calls for.
A Of an habitual drunkard. BY MR. LE BARBIER:
Q What was his reputation for peace and quiet?
432
MR. ELY: I object to that answer, and I ask to have it stiricken out. THE COURT: Strike it out.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q Now, I will put this question: Do you know what was his reputation as to sobriety?
A That he was a continual drinker, and a drunkard.
MR. ELY: I object to that. He was asked for his reputation. And I ask to have the answer stricken out. THE COURT: Strike out the answer, and repeat the question. That is the simplest way.
BY MR. LE BARBIER:
Q Do you know what the reputation of the deceased for sobriety was? Yes or no? THE INTERPRETER: Well, it is, practically, yes.
MR. ELY: Well what did he say?
THE INTERPRETER; "As an habitual drunkard". MR. ELY: I ask to have that stricken out.
THE COURT: Strike it out.
(The question is repeated by the stenographer)
A Yes.
433
BY MR. LE BARBIER:
Q Well, what was it? Good or bad?
A Bad, bad.
MR. ELY: Well, now, he understands English, and says, "bad, bad" in English. BY MR. LE BARBIER:
Q Now do you know what his reputation for peace and quiet was?
MR. ELY: He said no, just now; he answered no to the interpreter's question, and then the interpreter put another question, and he has said, "Si, si,si," several times.
THE COURT: Yes, he has said, "si" "yes", several times, but I will let the interpreter give the answer.
A Yes.
BY MR. LE BARBIER:
Q What was it? Good or bad?
A Bad. CROSS EXAMINATION BY MR. ELY:
Q Now, you say you are the father-in-law of Ciofolo?
A Yes; my son-in-law.
Q And how long ago did your daughter die? Look at me. Wait a minute.Look at me. How long ago did your daughter die? Answer me in English.
A About nine years.
434
Q About nine years ago?
A Yes.
MR. ELY: We don't need you, Mr. Morrossi. Thank you so much.
BY MR. ELY:
Q Now where have you been living, for the last five years?
A Well, I speak very bad English.
Q No, you speak fine.
A No.
Q Well, go ahead. Where do you live now?
A 64 Oliver Street.
Q Oliver Street?
A Yes.
Q And how long have you lived at 64 Oliver Street?
A About eight years.
Q Eight years?
A Yes, sir.
Q And you haven't lived with Joseph Ciofolo since your daughter died, have you?
A Yes.
Q Have you lived with him since your daughter died?
A No, sir, no, sir.
Q And he has been living in Washington Street, hasn't he?
A (No answer)
Q Do you know where he has been living for the last five or six years?
A Him?
Q Ciofolo?
A Well some market; I don,t know the place.
Q And you haven,t seen anything of him for the last five or six years; have you?
A I don,t understand that.
435
Q Now, since you have been living in Oliver Street--
A Yes.
Q You understand that?
A Yes.
Q Have you seen much of your son-in-law, Joseph Ciofolo; have you seen him often?
A Oh, about sometimes I see him.
Q Once in a while?
A Well, a couple of months or three or four months. I see him when I come in from my business, sometimes, two months.
Q Yes.
A And I pass there, I see him.
Q When you passed 282 washington street, you saw him?
A No, I don,t see him in Washington Street. I see him in
Oliver Street, and sometime in some other place.
Q That is, you see him passing in Oliver Street, or some other street?
A Yes.
Q But, practically, you have had no intercourse with him since your daughter died, have you?
A I don't understand.
(The question is repeated through the interpreter)
A Yes, we had some business together.
Q Well, I know, but I say that, practically -- well, all right. How long ago did you have some business together?
A Three years or four years ago, or two years ago.
Q Well you really don't remember whethere it is one year,
436
two years, three years or four or five or six years ago; do you?
A No; no, sir. THE INTERPRETER: He wants to say someting to the District Attorney.
MR. ELY: Oh, I don't want that; no.
RE-DIRECT EXAMINATION BY MR. LE BARBIER:
Q What were you going to say?
MR. ELY: I object to that.
THE COURT: No; you must proceed with questions and answers. because we can't tell whether it is competent or not.
MR. LE BARBIER: Exception. BY MR. LE BARBIER:
Q When you say that you don't recollect the times that you saw him, what do you mean? MR. ELY: I object, if your Honor please.
THE COURT: I sustain the objection. MR. LE BARBIER: Exception.
BY MR. LE BARBIER:
Q when did you last see your sos-in-law?
MR. ELY: I object. He has told us that he couldn't say whether it was anywhere from one to five
437 years.
THE COURT: Sustained.
MR. LE BARBIER: That's just one side, your Honor. We have the right to cross examine on that, on matters brought out. I submit that the rule goes for the defense as well as for the prosecution.
THE COURT: I sustain the objection. MR. LE BARBIER: Exception.
MR. ELY: Well, if they think that it will do any good, I will withdraw the objection. MR. LE BARBIER: The objection is withdrawn.
THE COURT: It may be answered, by consent.
MR. LE BARBIER: Please repeat the last question. (The question is repeated by the stenographer)
A Some five or six months before. BY MR. LE BARBIER:
Q Before what?
A Before seeing him the last time.
Q Well, when was it you saw him the last time?
A I can't remember exactly.
Q Can you approximate it?
A About some six months from now.
MR. LE BARBIER: The defendant rests.
438
REBUTTAL.
ALLEN G. KENISCH, a witness called on behalf of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Now, Mr. Kenisch, what is your business or occupation?
A Stenographer.
Q And are you attached to any court?
A Coroner's Court, Borough of Manahattan.
Q And were you attached to the Coroner's Court of the Borough of Manhattan as a stenographer, on the 6th day of August, 1906?
A Yes, sir.
Q And did you take the minutes before the Coroner, Peter P. Acritelli, in the matter of the inquest into the death of Joseph Ciofolo?
A Yes.
Q And did a witness by the name of Angelina Calandra testify at that inquest?
A Yes, sir.
Q Now, have you read over your stenographic minutes of the testimony of Angelina Calandra?
A Yes, sir.
Q And have you read over the whole of her testimony, the minutes of her testimony?
A Yes.
THE COURT: What particular testimony are you seeking to contradict, Mr. Ely? Let me have the page of the minutes here, in this trial.
439
MR. ELY: Well, sir, 270 of the minutes of the present trial. BY MR. ELY:
Q Now, referring to the testimony: "Q--"
MR. LE BARBIER: Well I object, may it please your Honor.
MR. ELY: Well, I haven't asked the question yet, and I object to the counsel interrupting and objecting now. THE COURT: Yes. If you will possess yourself in patffience, Mr. Le Barbier, I will instruct the witness not to
answer this question at all, until it is finished.
MR. LE BARBIER: Permit me to address your Honor.
THE COURT: I Will not. I want Mr. Ely to put the question, and then I will hear you.
MR. LE BARBIER: And we except to your Honor's remarks and we object to the question. THE COURT: Go on, Mr. Ely.
BY MR. ELY:
Q Now did the witness, Angelina Calandra, at any time state, as a witness before the Coroner, at the time that she testified about her brother's coming to thedoor, and saying, "Open, open, Angelina," testify "My husband said, 'No, no,' but
440
I was in a state of embarrassment between what my husband said, and between my brother, who was outside"? MR. LE BARBIER: Objected to, as immaterial, irrelevant and incompetent; first, on the ground that Mrs.
Calandra, the witness, has been a witness on behalf of the People, and is now in court. Secondly, that in no way, and under no authourity, as we submit, can the District Attorney seek in any way now to impeach the testimony of the witness.
MR. ELY: Now, just one minute--
MR. LE BARBIER: And, third, he can,t ask her whether she testified to something that she wasn't asked directly; and, fourth, that the proper foundation of facts hasn,t been laid for the purpose of this testimony.
MR. ELY: Now, if your Honor please, in regard to the first -- in regard to these objections, I have simply to say this: That it is perfectly proper to show that the witness, or a withness, is laboring under a misapprehension or a mistake of fact, to correct the fact; and it is perfectly proper to show that, at a certain time, a witness took a different view than the view that witness took, at a subsequent time, for the purpose of showing that her recollec-
441
tion was not reliable; and it isn't with the view of attacking the incredibility of the witness that the
People put on the stand, in the person --
THE COURT: I have already ruled on that point so many times, in the case, that you have the right to contradict your own witness on a specific point, that it is unnecessary to argue it further.
Whether or not this particular matter contradicts, and is germane and proper, is another question. MR. ELY: Very well, sir. Well, I will withdraw all that, except the words, "no, no."
THE CORUT: Now, the testimony in this case is: "Q When he said these words, 'open, open, Angelina,' what did your husband say to you, if anything?
A My husband said, 'No, no,' but I was in a state of embarrassment between what my husband said and between my brother, who was outside." You have, therefore, the precise testimony which you are seeking to elicit from this witness.
MR. ELY: Sir?
THE COURT: You have the very question that you are seeking to elicit from the witness.
MR. ELY: But I am asking whether or not she made any statement, at that time, that her husband
442
said, "No, no," in her testimony before the Coroner's hearing. THE COURT: Very well. I will allow the answer.
MR.LE BARBIER: Exception.
A There is no such testimony in my minutes, and I, therefore, say no. MR. LE BARBIER: I move to strike out the answer.
THE CORUT: No; let it stand.
MR. LE BARBIER: As incompetent, immaterial and irrelevant, and not proper, and not in rebuttal, and no foundation of facts having been laid for this. Exception.
BY MR. ELY:
Q Now, did the witness, Madam Calandra, at any time state at the hearing before the Coroner that her husband said, during the struggle -- or that the deceased said during the struggle -- "This night will and it; and, if
you don't stop, I am not afraid of you, adn I'll take the revolver"?
MR. LE BARBIER: Objected to, as incompetent, and not in rebuttal, and on all the former objections raised. THE COURT: Now, what does that contradict, Mr. Ely?
MR. ELY: I have asked her on that point, whether
443
she testified on that subject before the Coroner.
MR. LE BARBIER: And on the further ground that it doesn't appear that the question was asked of the witness. THE COURT: And what was the answer, Mr. Ely?
MR. ELY: I'll have it in a moment, sir.
THE COURT: I think it is page 272, in the middle of the page. Well, answer the question.
A No, sir.
MR. LE BARBIER: I move to strike out the answer, as incompetent, immaterial and irrelevant; and, with your
HOnor's permission, in support of the motion, I respectfully call your Honor's attention to the fact that, in the Coroner's Court, the witness wasn't asked those questions.
THE COURT: Well, it doesn't appear that she was.
MR. LE BARBIER: May I ask that of the stenographer?
THE COURT: Oh, yes, you may, in due course. But the fact that she didn,t give the testimony is all that these question seek to elicit.
MR. ELY: That's all.
THE COURT: And you may show, in due course,
444
that she wasn,t asked about it; and it is for the jury to say whether it is of any importance, or not. BY MR. ELY:
Q Now, did Madam Calandra, at the Coroner's Court, testify: "If you don,t stop that, tonight, I am apt to make an end of it, tonight, even with thine own revolver. I am not afraid of thee"?
MR. LE BARBIER: Objected to, as incompetent. THE COURT: He may answer.
A No, sir.
MR. LE BARBIER: Exception. BY MR. ELY:
Q Now, referring to page 24 of the Coroner's minutes, was this question asked of Madam Calandra, and did she make this answer: "Q Now I ask you where your husband was at that time?
A He came out from the bed room into the kitchen"?
MR. LE BARBIER: Objected to, as incompetent. THE COURT: Overruled.
MR. LE BARBIER: Exception.
A With this exception. I have it, "He come out from the bed room into the kitchen."
Q You have it, "He come out from the bed room into the kitchen"?
A Yes, sir.
Q Well, that,s the way you have written it out, too?
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A Yes, sir.
Q Was this question and answer -- was this question propounded to Madam Calandra, in the Coroner's Court, and did she make this answer, just prior to the last question and answer that you have testified to? "Q Where was
your husband at the time your brother came back into the room from the hallway?
A My brother came into the kitchen as soon as I opened the door"?
MR. LE BARBIER: I object to it, as incompetent. THE COURT: Allowed.
MR. LE BARBIER: Exception.
A Yes; with the same exception, "My brother come in the kitchen as soon as I opened the door."
Q And the next question and answer follow: "Q Now, I ask you where your husband was at that time?
A He came out from the bed room into the kitchen"?
A Yes, sir.
CROSS EXAMINATION BY MR. LE BARBIER:
Q Was there any cross examination of the witness in the Coroner's Court?
A Well, it is pretty difficult for me to answer that, Mr. Le Barbier. It's a long time ago and I can't answer that, except from my recollection.
BY THE COURT:
Q Well, your record shows every question and answer that
446
was asked?
A Yes, sir.
Q Now does your record show whether the questions that Mr. Le Barbier inquires about were asked?
A Well, I
don't recollect that he has asked me any particular question, your HOnor.
Q Oh, I thought he had.
A No; he simply asked me whether the witness had been cross-examined. BY MR. LE BARBIER:
Q You don't remember?
A The question was, whether there was any cross-examination of the witness? MR. LE BARBIER: Yes; any cross examination at all.
A Well, it is rather difficult for me to answer it. I don't think I understand the question.
Q Do you remember my being there, at the time?
A Yes; I remember that you did ask questions.
Q But do you remember my asking questions of Mrs. Calandra?
A Yes; I remember that.
Q Are you positive of that?
A Well, I remember going over my minutes, and seeing that you have.
Q Well, I don't want to mislead you, at all, but don't you remember, as matter of fact, that, when Mr. Cardozo asked questions, and, when he finished, neither Mr. Vreeland or myself asked a single question? I want to be perfectly fair
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with you.
A Well, I wouldn't state anything positively from my recollection; only as to what my minutes show.
Q Well, can't you skim down your minutes, and find out whether she was cross examined?
A Oh, you are referring only to this one witness?
Q Yes, this particular witness.
A Well, I can answer that, in a minute or two, if you will just allow me to look over her testimony.
Q Yes. Do that, please. I think she was the last witness, just before Bauer.
A I find by looking over my minutes, that no question was asked of Mrs. Calandra by the
counsel for the defendant.
Q Do you remember whether this question was put to the witness-- MR. ELY: Where, Mr.Le Barbier, please?
MR. LE BARBIER: On page 29 of the minutes. BY MR. LE BARBIER:
Q Was this questi on asked, and this answer given: "Q Do you know whether he was addicted to drinking very heavily?
A Well, he was in the habit of drinking, yes; but, when he came to my house, he wasn't heavily drinking at all"?
MR. ELY: I object to that. That is not a proper subject of examination by this consel of this witness. There is no testimony on that subject
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at all.
MR. LE BARBIER: Well, that's the very rule that we contend for. There is no testimony on the other subjec, in the Coroner's Court; no questions were askedin the Coroner's Court that were asked here; and we are invoking the same rule.
THE COURT: You may answer the question.
A I can,t answer that question, your Honor, without being informed a little further. I don't undderstand whether the counsellor asks whether this testimony occurred in Mrs.
Calandra's testimony, while she was on the stand, in the first place. Am I to so understand? BY MR. LE BARBIER:
Q Yes.
A While she was on the stand? and the question put by the Coroner?
A Well, I would have to --
Q Just toward the very last.
A Toward the last of Mrs. Calandra's testimony?
MR. LE BARBIER: YES; toward the last of Mrs.Calandta's testimony.
A That question was asked; yes.
Q And then was the answer given. "A Well, he was in the habit of drinking, yes; but, when he came to my house, he wasn't heavily drinking, at all"?
A That,s correct.
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RE-DIRECT EXAMINATION BY MR. ELY:
Q Now was this question asked by the Coroner of Mrs. Calandra, and did she make this answer: "Q When your brother first came in, that night, had he been drinking?
A No, sir"?
A Correct.
Q And was this question asked by the Coroner of Mrs. Calandra, and did Mrs. Calandra make this answer: "Q How much did he drink up there?
A Half a glass of beer"?
A Correct.
MR.ELY: Now, the next answer is what counsel has asked about:
MR. LE BARBIERl: NOW, I move, may it please the Court, to strike out all the testimony of this witness, on the ground that it is incompetent.
THE COURT: I will deny your motion, at this time. MR. LE BARBIER: Exception.
THE COURT: Call your next witness.
JOSEPH RUSSO, a witness called on behalf of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Russo, what is your business?
A Police officer.
Q And connected with the Municipal Police Force of the City of New Youk?
A Yes, sir.
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Q And how long have you been connected with it?
A Four years and seven months.
Q And what is your first name, Russo?
A Joseph.
Q Joseph Russo?
A Yes, sir.
Q And how are you detailed now?
A I am attached to the Third Precinct, and detailed to the District Attorney's office.
Q Well, you are assigned to the Third Precinct, and detailed to the District Attorney's office?
A Yes, sir.
Q And how long have you been detailed to the District Attorney's office, about?
A One year and nine moths.
Q And were you detailed to the District Attorney's office, on the 1st day of August, 1906?
A Yes, sir.
Q Now, Russo, what is your nationality?
A Italian.
Q And do you know Mrs. Calandra?
A Yes, sir.
Q Angelina calandra?
A Yes, sir.
Q And did you see her at the District Attorney's office, on the 1st of August, 1906?
A I did.
Q And did you see her put her mark to any paper?
A I did; yes.
Q And, before she put her mark to any paper, do you know of your own knowledge whether she was sworn to it, whether she swore to it?
A Yes.
Q And what, if anything, had you to do with taking the testimony of Mrs. Calandra, or with the statement that she
451
made, at that time?
A I only read the statement over to her.
Q Well, in what language?
A In the Italian language.
Q And, after the statement had been read to her in the Italian language, was it then that she made her mark, and swore to it?
A Yes, sir.
Q And you correctly interpreted that statement to her?
A To the best of my ability, yes.
Q In the Italian language?
A Yes, sir.
Q Now, in that statement did Mrs. Calandra say --
MR. LE BARBIER: Objected to, on the ground that the defendant wasn't present. this is a statement made in the absence of the defendant.
THE COURT: Finish your question, Mr. Ely, and then I will determine. MR. LE BARBIER: Exception.
THE COURT: I have not ruled at all. There is nothing for me to rule upon. Your objection preceded the question.
BY MR. ELY:
Q Did Mrs. Calandra say: "A Knock was at the kitchen door, and I heard my brother's voice sya, 'Open. I will tell him I'm not drunk. I only came to reason with him.' I then opened the door, and my brother came in. My husband then left
452
the bed room, and came into the kitchen"?
THE COURT: Now, Mr. Le Barbier, make your objection.
MR. LE BARBIER: Objected to, as immaterial, irrelevant and incompetent, and directed simply to impeaching his own witness, and not in rebuttal.
THE COURT: No. Impeaching is where you attack character, not statemnets. This seems to be an affort on the part of the District Attorney to show, that, at another time and place, the witness made a somewhat different statement. Now, Mr. District Attorney, did you direct the witness' attention to that fact?
MR. ELY: Page 235. "Q Now do you remember -- for the purpose of refreshing -- did you state on the 1st of August, 1906, at the District Attorney's office, 'A knock was at the kitchen door, and I heard my brother's voice say, 'Open. I'll tell him I'm not drunk. I only came to reason with him. I then opened the door, and my brother came in. My husband then left the bed room, and came into the kitchen'."
THE COURT: And what was her answer to that?
MR. ELY: "A. No, he didn't sya anything about reasoning."
453
THE COURT: Answer the question, Mr. Witness. MR. LE BARBIER: Exception.
A Yes.
MR. LE BARBIER: I move to strike out the testimony of this witness. THE COURT: Denied.
MR. LE BARBIER: On the ground that it is incompetent. THE COURT: Denied.
MR. LE BARBIER: Exception. CROSS EXAMINATION: None.
THE WITNESS: Your HOnor, may I make one -- correct one answer?
THE COURT: Yes.
THE WITNESS: I said I was four years and seven months on the police force, where I was four years and five monthson the police forece.
RE-DIRECT EXAMINATION BY MR. ELY:
Q Four years and five monthson the police force, instead of four years adn seven months?
A Yes, sir.
454
THOMAS F. PARK. a witness called on behalf of the People, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ELY:
Q Mr. Park, what is your business?
A Commission merchant.
Q And what is your firm, or the corporation with which you are connected?
A T.F. Park & company.
Q And where is your businedss address?
A 344 Washington Street.
Q And how long have you been there? a About three years.
Q And did you know Joseph ciofolo in his lifetime?
A Yes, sir.
Q And for how long a time did you know him?
A Five or six years.
Q And do you know other people who knew him?
A Yes.
Q And did you know his reputation for peace and quiet?
A No, I didn't; I only knew him in a business way.
Q Well did you know his reputation -- you didn,t know anything about his reputation for peace and quiet, even in a business way?
A Only in a business way.
Q What was his reputation for truth and veracity and for peace and quiet, in a business way?
A Very good, as far as I know, sir.
CROSS EXAMINATION: None.
455
MR. ELY: The People rest.
MR. LE BARBIER: I now move, may it please your Honor, to strike out the testimony of the stenographer for the Coroner, renewing my motion, after your Honor's ruling, solely uponthe ground that I understand now that the objection is not pressed upon the part of the District Attorney.
MR. ELY: If the counsel will state, sir, what special part of the testimony given by the Coroner's stenographer that he desires to have stricken out, why, then, I will reply as to whether or not I object. I certainly do object to striking out any of the testimony that the Coroner's stenographer has read from the Coroner's minutes.
But, as to the questions that have been asked the stenographer as to whether or not certain statements were made -- as to whether certain testimony was given at the Coroner's Inquest, and he then stated that he had examined his notes, and he didn't find that testimony, it is specifically a reply -- and I will -- I am
willing to state what I am willing to have stricken out. As to whether the defendant said, "No, no," and as to whether the witness said, at the Coroner's inquest, that her brother on the
456
night in question said, "This night will end it, if you don't stop. I am not afraid of you, and I'll take the revolver, if you don't stop that. I am apt to make an end of it, to-night, even with thine own revolver. I am not afraid of thee." If that is the objection of the counsel, if that is what he refers to, I am willing to
make my statement.
Otherwise I am not; because it is part of the cross examination of the Coroner's stenographer -- I am willing to make the statement that these questions were not distinctly asked, or no question was propounded which called, perhaps, distinctly for this testimony.
THE COURT: Well, Mr. Le Barbier?
MR. LE BARBIER: Well, in so far as this specific consent-- MR. ELY: I haven,t consented.
MR. LE BARBIER: In regard to that particular testimony. I move in regard to that particular testimony. MR. ELY: I don,t object to that, as far as that is concerned.
MR. LE BARBIER: Well, then, my objection is overruled as to the other testimony, as I understand
457 it?
THE COURT: Yes. The point, as I understand it, being where it is sought to show that she didn't give such testimony, and it was shown that she was asked for suchtestimony? That,s stricken out?
MR. ELY: Yes.
MR. LE BARBIER: Exception.
MR. ELY: And there was a motion made by caunsel for the defendant to strike out the testimony of Celia Manjanara. And all that she testified to was that she was a bookkeeper, etc., and had written kand addressed a certain envelope.
THE COURT: And that was marked for identification?
MR. ELY: Yes, sir. And wasn't admitted to the case. And I am perfectly willing to let that testimony fall, and be stricken out.
THE COURT: Yes, and it was my interntion to do so, if not connected, and I so announced. Very well, strike it out. The witness was called to identify a paper. and the paper, not having been offered, it is not a part of
the testimony, and I hereby strike it out from the record.
MR. LE BARBIER: And now I move that all the testimony taken subject to a motion to strike out, referring to the minutes of the stenographer, be now stricken out.
THE COURT: Mr. Le Barbier, I cannot rule on a motion made in that broad and general way. Any specific matter that you have in mind, I will then determine whether it has been connected, and, if not, I will strike it out.
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1
MR. LE BARBIER: Any testimony in any way purporting--
THE COURT: No; you must let me know what the particular testimony is.
MR. LE BARBIER: Now, then I move to strike out any testimony in any way, or kind or description purporting to make the so-called connection, on the part of Celia Manjanara, in regard to that envelope.
THE COURT: I think I have already stricken out that testimony. MR. LE BARBIER: From any witness.
THE COURT: Oh, I don't know as to any other witness but herself. MR. ELY: I suppose he is referring to the doctor's testimony.
MR. LE BARBIER: And that was stricken out.
MR. ELY: No. As to the conversations between the doctor and the defendant, the conversation at which the deceased was Present, has been stricken out. There is no question about that. But the facts that the doctor did go and see the defendant, that the doctor then went and saw the defendant's wife; that the doctor saw the defendant again; and that the doctor saw the defendant again at Bensonhurst, in company with Ciofolo, as I understand, remained.
THE COURT: Yes; I think so.
459
MR. ELY: And I am not confident whether another part of the testimony remains or not, and therefore, I will not state it, until I look at the minutes here. my best recollection is that it went out, on consent. I
remember, it did go out on consent. MR. LE BARBIER: Yes.
MR. ELY: And that's just exactly what is in the case. THE COURT: And now any other motion?
MR. LE BARBIER: I now renew my motion, on the whole case, degree be withdrawn from the consideration of the jury, on the ground that the Prosecution has not made out facts sufficient to establish the crime of
manslaughter inthe first degree.
THE COURT: Denied. You may note your exception.
MR. EL BARBIER: Exception. And I also make the same motion with regard to manslaughter in teh second degree. THE COURT; Note your exception. Denied.
And, of course, the degrees of assault are possibel,
460
3
under the crime charged. You desire to make a motion as to that, under the indictment for murder? MR.LE BARBIER: As to assault? THE COURT: Yes.
MR. LE BARBIER: No, sir. I don't desire to move as to those matters. THE COURT: Very well.
MR. LE BARBIER: And I now ask your Honor to advise the jury to acquit, on the ground that the People have not extablished facts sufficient to establish the crime charged in the indictment, or any crime whatever.
THE COURT: Motion denied. MR. LE BARBIER: Exception.
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9
TEH COURT'S CHARGE. Gentlemen of the Jury,
I am requested by the defendant to charge you as follows;
First --That it is the duty and obligation and the burden of the People, throughout the entire trial, to establish the crime charged beyond a reasonable doubt.
Second -- That the defendant is not required to satisfy the jury as to his innocence, but the People must prove, beyond a reasonable doubt, that the defendant is guilty of the crime charged.
Third -- I decline to charge this request, except as hereinafter I shall charge it, in substance. Fourth -- That the burden of proof never shifts in a criminal trial.
Fifth --The rule is that, where there is a reasonable doubt in each of several degrees of crime, if defendant is guilty, he must be convicted of the lowest degree.
Sixth -- If, upon a consideration of the whole case, the jury forms a reasonable doubt, then it is
462
10
their duty to acquit.
Seventh -- That the presumption of innocence attaches to the defendant, and such presumption of innocence is carried by the jury into their final deliberations.
Eighth -- I decline to charge this request, except as hereinafter I may charge it.
And now follow a considerable number of requests touching character. I shall, in my own way, bring this subject to your attention, and, if I do not cover the subject of character fully enough to satisfy the repeat
to me such as he may desire charged. Nineteenth -- The rule is that the evidence must to a moral certainty, or beyond a reasonable doubt, exclude or remove every other hypothesis than that of the defendant's guilt.
Twentieth -- That where a reasonable doubt upon the whole case arises from this kind of testimony, the defendant is entitled to the benefit of it, and to an acquittal.
I so charge.
Twenty-first-- I decline to charge this request, except as hereinafter I shall charge it. And so as
463
to the twenty-second and twenty-third.
Now, gentlemen of the jury, suffering as I am from a cold, which is apt to attack me in my voice, I hope I shall be able to complete my charge without interruption. But, if I have to stop for a few moments, you will pardon me.
This case is one of homicide, one of the most serious known to the law. The charge of the indictment against the defendant is that of murder in its first degree, the only crime which, under our law, is punishable by
death.
with the approval and consent of the District Attorney, I have withdrawn from your consideration the charge of murder; and shall leave it to you to determine whether or not this defendant is guilty of mansaughter in its
first degree. I shall not shumit any other crime, or degree of crime, unless I am requested so to do by counsel.
Homicide is manslaughter in the first degree, when committed without a design to aggect death, in the Heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon.
Now, the primary distinction between murder and manslaughter is this: In murder there is a design
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2
to effect death; in manslaughter there is no such design. In both murder and manslaughter, there mush be a killing, before the crime can be completed.
There is no substantial dispute here, I takeit, that Joseph Ciofolo came to his death from a pistol shot wound from a pistol in the hands of the defendant, Biaggio Calandra, which injuries were inflicted on or about the
20th of July last. And the question for you to determine is, whether or not this crime amounts to manslaughter in its first degree, or, if not, whether it is justifiable or excusable homicide.
I will repeat, therefore, what acts the law says constitute the crime of manslaughter in its first degree. There must bem first of all, the killing of the deceased, and it must be effected without any design ot effect
his death,but in the beat, of passion, and in a cruel or unusual manner, or by means of a dangerous weapon.
If, therefore, all these elements have been proven against the defendant, you may find him guilty of manslaughter in its first degree, unless, under the law as I shall bring it to your attention, in a moment, it is excusable or justifiable.
Homicide is excusable, when committed by acci-
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13
dent and misfortune, in doing any lawful act, by lawful means, with ordinary caution, and without any unlawful intent.
It sometimes happens to us that, be as careful as we will, our conduct results in serious injury to others, and the law, we seek to punish the depraved mind, as evidenced by evil acts, excuses such accidents and misfortunes which happen when a parson is doing what he lawfully may, with ordinary caution, and without unlawful intent.
But the defense here, I take it, is not so much that this homicide was excusable, though I have been requested to bring that to your attention, as that it was justifibale.
Now, justifiable homicide is defined in the law as follows: "Homicide is justifiable, when committed in the
lawful defense of the slayer, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, and there is imminent danger of such design being accomplished".
Did this defendant at the bar, in his own lawful defense, kill Ciofolo? And, if so, was there reasonable ground to apprehend a design on Ciofolo's
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14
part to do some great personal injury to the defendant; and, if there was reasonable ground to apprehend, as there, also, imminent danger of this design being accomplished? If so, the homicide alleged to have been committed by the defendant is justifiable, under the law.
Now, in common parlance, gentlemen, that is what is called self defense. It does not mean that, when a person is assailed, he has a right to kill his assailant, that he has the right to visit punishment upon the
aggresssor; because that must be left to the law. But, if there is imminent danger of grievous personal injury being done to one, and there is reasonable ground to apprehend a design to effect such injury, then a person may act upon appearances, and do whatever is necessary to save himself harmless.
And, before one can justify the taking of life, in self defense, he must show that there were reasonable grounds for believing that he was in great peril, and that the killing was necessary for his escape from the peril, and that no other safe means of escape was open to him.
I shall not advert to the facts in the case, gentlemen. I shall not review the evidence for your
467
benefit. My personal feeling and view of that is that, by iterating and reiterating some portions of the evidence, I might, unconsciously and uninterntionally impress upon your mind my own view of the case. I am here as a Judge to declare the law, and to leave you to determine the case. Whatsoever I may think is of no consequence. I am not charged with the responsibility of deciding; you are. And, as you are charged with this responsibility, you ought to have, in the fullest measure, the widest discretion in deciding it. I shall not, therefore advert at all to the facts. You have heard the evidence, and you must depend upon your own recollection of it, upon the statements made by counsel as to the evidence, at all. It is right and proper for counsel, in summing up the case, to marshal the facts as they understand them, and claim they are proven, in such a manner as to compel your minds to the conclusion for which they strive.
But you are charged, not with a duty to aid the People in proving the defendant's guilt, nor with the duty of aiding the defense in securing an acquittal, if possible; but to determine, rather, wherein lies the truth;
and whether or not, beyond
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16
a reasonable doubt, the facts which constitute guilt have been proven against the defendant.
And, since that is so, you must depend upon your recollection of the evidence; and should there be any failure of recollection on your part, it is right and proper for you to have your memory refreshed by a review of the stenographer's minutes.
Now, I have defined to you the acts which the law says constitute the crime charged against the defendant. I have defined to you what the law says constitutes excusable homicide, and what acts the law says constitute justifiable homicide; and so, in substance, the case is with you.
But there are two matters of testimony that I must, in brief, bring to your attention the law concerning. There is evidence, pro and contra, touching the reputation of the deceased for sobriety and peacefulness.
This evidence was received by consent, and, since it is the case, it is right and proper for you to consider it.
Now, the bad character of a person slain is of no importance whatever. The law does not give it to any human being to determine whether or not another
469
shall be put away, as unworthy to live; and it is as grave a crime before the law to kill the most unworthy of beings, as to kill the best and the noblest of all. But this evidence touching the bad character for peacefulness and sobriety of the deceased has been received as bearing upon the probability or the improbability, if you will, of the defense which the defendant interposed here, that he acted in self defense, and was justified in doing what he did; because, if you believe that the deceased was a man of a drunken dispostion, adn quarrelsome when in his cups, it may be that you may believe more readily the defense interposed by the defendant; and it is for that purpose, and that purpose alone, that I received the evidence touching the alleged bad character of the fdeceased. Whether he was so quarrelsome is one of the many quesitons of fact that it is your duty to determine.
Then we have, also, evidence tending to show that the defendant himself has enjoyed amongst his nighbors a good reputation for peacefulness, and for quietness, and for uprightness of conduct.
You will take this evidence into consideration, gentlemen, and give it the weight and credence that
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18
you think it ought to have.
Evidence of good character, or good character itself, in no way excuses or palliates the commission of crime. If you are convinced, beyond a reasonable doubt, first of all, that the defendant is a man of the most
unblemished and best of good character, and as an independent fact, secondly, that the homicide committed by him was neither excusable nor justifiable, and that it amounted to manslaughter in its first degree, your
plain duty will be to so find, disregarding altogether the evidence as to his character. But, when you come to consider whether or not he is guilty, then consider the evidence touching character.
Evidence of good charater is sometimes sufficient to create a reasonable doubt, when, without it, there would be no reasonable doubt whatever. It is for you to determine, and it is for you to give the weight and oredence that you think it ought to have.
Now, gentlemen, the law is charitable in all things. It requires nothing impossible, and nothing unusal. It presumes the defendant innocent, and
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that presumption should accompany you into the jury room; and it remains the property of the defendant until, by your verdict, you shall prononce him guilty.
And the People are not only required to prove his guilt, and overcome and rebut this presumption of innocence, but they must satisfy your minds, beyond a reasonable doubt, of his guilt. Having done that, your plain duty
is to convict. The law requires nothing more.
If any hypothesis remain, indicating to your mind that it is as likely as not that the defendant is innocent, give him the full benefit of it; and do not convict, if any hypothesis except that of guilt remain.
I said, a moment ago, that the People must prove beyond any reasonable doubt the defendant's guilt. The term reasonable doubt is one easily understood, but difficult of definition. I can only say to you that
you are expected to receive the evidence in this case as reasonable men, and to give it the same careful
consideration and honest determination that you would give to the important affairs that daily confront you in your life. If there, you
472
were confronted with a situation of doubt, you would know at once whether the doubt was a reasonable one or not. If there be reasonable doubt, the defendant is entitled to the benefit of that. More than that. I cannot
say.
The charge, then, that I submit to you for your determination, against the defendant, is whether or not he is guilty of manslaughter in its first degree. You may retire, gentlemen,
MR. ELY: If the jury want any exhibits, I suppose they will ask for them? THE COURT: Is it consented that the jury may take with them any exhibits? MR. LE BARBIER: Yes; they may have them, if they desire them.
THE FOREMAN: We would like to have the pistol and the chart. THE COURT: Then you may have them, as counsel consent. The jury returned to the court-room at 5 p.m.
THE COURT: Mr. Foreman, I have a communication from the jury, stating that they would like to know what evidence given by Mrs. Calandra, at the Coroner's inquest, may be considered by them.
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THE FOREMAN: Yes, sir.
THE COURT: You will recall that Mrs. Calandra hersefl was on the stand, and that, in her cross examination, certain questions were asked, touching her testimony before the Coroner's jury. Whatever was elicited upon her cross examination, you may consider. It is in evidence before you. And then you will recall that the
stenographer of the Coroner's court was called, in rebuttal, and that much of his testimony was subsequently stricken out.e
I take it that your question, then, relates more particularly to the testimony given by the stenographer, and
I will ask the official stenographer to read to you the portions of testimony that still remain in the case. (The stenographer reads the portions of the testimony required).
MR. LE BARBIER: May I ask your Honor about the gentleman's cross examination; what your Honor says as to that?
THE COURT: Whatever testimony there is in the record they may consider. You may require, gentlemen. THE COURT JUROR: Could I hear the testimony of
474
Mrs. Calandra, that she gave, that Officer Tarpey, when he first went there, on cross examination; what Mrs. Calandra testified, on the stand, as to the conversation that was held between Officer Tarpey and herself?
MR. ELY: You mean from Mrs. Calandra's testimony? THE JUROR: Yes, that's what I mean.
(The stenographer reads the testimony)
THE COURT: Does that answer the question of the third juror? THE THIRD JUROR: Yes, sir.
THE NINTH JUROR: I simply wish the Court to advise us whether we are to consider any of the testimony of Mrs. Calandra, given before the Coroner's jury, as direct evidence in this case.
THE CORUT: You may consider whatever testimony remains in the record. I have been trying to have the stenoprapher read what remains in the record. Her testimony here is the evidence in this case; and it is
calaimed that she has been some contradictory statements elsewhere, and you may consider her evidence here and the evidence touching her statements elsewhere, and, from all the evidence,
475
23
to determine the truth. You must use your own good sense and judgment, and determine that for yourselves. MR. LE BARBIER:-
THE COURT: Step forward to the bench, and make any statement that you may desire to make to the Court, in private. Of course, any testimony that has been heard by you, gentlemen, and subsequently stricken out, by consent, or otherwise, is not before you. Whatever testimony is stricken out must be disregarded and forgotten by you, just as though you had never heard it. But, whatever evidence remains in the case, or whatever testimony remains in the case, is evidence for you to consider. now, is there any further question?
THE SECOND JUROR: May it please your Honor, may we have the corss examination by Mr. Le Barbier of Mrs. Calandra, following the direct examination by Mr. Ely?
THE CORUT: Yes.
MR. HONE: The complete cross examination? THE JUROR: Yes.
THE COURT: Yes.
(The cross examination is read by the stenographer)
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THE COURT: That will be sufficient, if your Honor please.
THE COURT: Now, is there any further question of law that you desire to be informed upon? THE FOREMAN: No, sir.
THE COURT: Now, is there any further question of law that you desire to be informed upon? THE COURT: Then you may retire.
(The jury again retired, at 5:30 p.m.)
(The jury returned to the court-room, at 6:30 p.m., finding the defendant not guilty).
477
DEFENDANT'S REQUEST TO CHARGE.
The defendant respectfully prays this Corut to charge the following requests to the jury:- I.
That it is the duty and obligation and the burden of the people, throughout the entire trial, to establish the crime charged beyond a reasonable doubt.
2.
That the defendant is not required to satisfy the jury as to his innocence, but the people must prove, beyond a reasonable doubt, that the defendant is guilty of the crime charged.
3.
That even assuming, the defendant's story does not satisfy the jury, nevertheless that is not sufficient, but
the jury must determine from the People's case, whether or not on the People's case, the people have proved the case beyond a reasonable doubt.
4.
That the burden of proof never shifts in a criminal trial.
478
5.
The rule is that where there is a reasdnable doubt in each of several degrees of crime, if defendant is guilty he must be convicted of the lowest degree.
6.
If upon a consideration of the whole case the jury forms a reasonable doubt, then it is their duty to acquit.
7.
That the presumption of innocence attaches to the defendant, and such presumption of innocence is carried by the jury into their final deliberations.
8.
That homicide is exscusable when committed by accident and misfortune and without any unlawful intent, and that homicide is also justifiable under the statute.
9.
That there is testimony in this case, and that if the jury believe it, believe the testimony of these witnesses upon the subject of the defendant's char-
479
acter, there is proof conclusive of good character.
10.
That the presumption of good character which arises as to the defendant's good character, both from the failure to attack it, and from the testimony given, may of itself be sufficient to raise a reasonable doubt as to the defendant's guilt.
Peo. v. Bonier, 179 N.Y.318.
11.
That no matter how conclusive the testimony may appear to be, the character of the accused may be such as to craste a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities, that such a person of such character would not be guilty of the offense charged; that the other evidence in the case is
false, or the witnesses mistaken. Peo.v. Remsen, 43 N.Y.6.
12.
That evidence of good character may in and of itself raise a reasonable doubt which would warrant a jury in acquitting a defendant, no matter how strong
480
the evidence against him may be. Peo. v. Seldner, 62 App.Div.357-363. Citing many cases; also that of Peo.v. Remsen 43 N.Y. 6.
Peo.v.Goldberg, 20 App. Div. 444.
13.
That evidence of good character is not only of value in doubtful cases and in prosecution of minor offenses, but is entitled to be considered when the crime charged is atrocious, and also when the evidence tends very strongly to establish the quilt of the accused. It will sometimes of itself create a doubt when without it,
none would exist.
Remsen v.Peo. 43 N.Y. 6.
Re-affirmed Peo.v.Bonier, 179 N.Y.320.
14.
That evidense of good character in the exercise of the sound judgment of the jury may be sufficient to warrant an acquittal, even if the rest of the evidence should otherwise appear conclusive.
Peo.v.Bonier, 179 N.Y. 322.
15.
That proof of good character is of peculiar value in case of this kind, "because the deliberate
481
perpetration of the gravest of crimes is so inconsistent with an upright and orderly life as to cause the mind
to hesitate and to examine adn re-examine the circumstances with the utmost care before accepting them as conclusive proof.
Id.p.322.
16.
An innocent person may be so surrounded by adverse circumstances that the only reliance is the naked denial, which ordinarily had but little weight.
and proof of good character which may have great weight. Peo.v.Bonier, p.322.
17.
That from the testimony given by the defendant as to his character and the failure of the People to give any evidence on the subject, a reasonable doubt might arise.
Id.p.323.
18.
Where the evidence is nearly balanced, but slightly prepondering against the defendant, the pre-
482
sunption from proof of good character is entitled to great weight, and will often be sufficient to turn the scale and produce and acquittal.
Peo.v.Bonier, 179 N.Y.319.
19.
The rule is that the evidence must to a moral certainty, or beyond a reasonable doubt, exelude or remove every other hypothesis than that of the defendant's guilt.
Peo.v.Smith,162 N.Y. 529.
Citing Ruloff v. People, 18 N.Y., 194. Peo.v.FitzGerald, 156 N.Y. 253.
20.
That where a reasonable doubt upon the whole case arises from this kind of testimony, the defendant is entiled to the benefit of it, and to an acquittal.
21.
Evidence that he had reason to apprehend some great bodily harm from the acts and motions of the deceased is sufficient under the statute to justify defendant in his action.
22.
That the reason why such threats are admissible is to show an attept to execute them when dan oppoturnity occurrred and the more ready belief of the accused would be justified to the precise extent of the
probability.
23.
For the use of force or violence upon or toward the person of another is not unlawful when committed by the party about to be injured, if the force and violence use is not more than sufficient to prevent such an
offense.