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People v. Castaldo

Supreme Court of New York, Appellate Division

November 3, 1911

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
GUISEPPE CASTALDO, Appellant.

APPEAL by the defendant, Guiseppe Castaldo, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 6th day of May, 1910, convicting him of the crime of assault in the first degree under an indictment found on the 17th day of January, 1910.

The indictment is as follows:

Page 768

'The Grand Jury of the County of New York, by this indictment, accuse Guiseppe Castaldo, of the Crime of Assault in the First Degree, committed as follows:

'The said Guiseppe Castaldo, late of the Borough of Manhattan, of The City of New York, in the County of New York aforesaid, on the fourteenth day of July, in the year of our Lord one thousand nine hundred nine, at the Borough and County aforesaid, with force and arms, in and upon one Pasquale Alloca, in the peace of the said People then and there being, feloniously did make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there loaded and charged with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale Alloca, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity.

'SECOND COUNT:

'And the Grand Jury aforesaid, by this indictment, further accuse the said Guiseppe Castaldo of the Crime of Assault in the Second Degree, committed as follows:

'The said Guiseppe Castaldo, late of the Borough and County aforesaid, on the day and in the year aforesaid, at the Borough and County aforesaid, with force and arms, in and upon the said Pasquale Alloca, in the peace of the said People then and there being, feloniously did wilfully and wrongfully make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there charged and loaded with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a weapon and an instrument likely to produce grievous bodily harm, then and there feloniously did wilfully and wrongfully shoot off and discharge against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.'

COUNSEL

Page 769

Isidor J. Kresel, for the appellant.

Robert C. Taylor, for the respondent.

SCOTT, J.:

This is an appeal from a judgment of the Court of General Sessions, New York county, convicting the defendant of the crime of assault in the first degree. The indictment is in the common-law form and charges that the defendant 'with force and arms, in and upon one Pasquale Alloca, in the peace of the said People then and there being, feloniously did make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there loaded and charged with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale Alloca, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity.'

Under such an indictment it seems that the defendant could properly be convicted of the crime charged by proof of the crime as defined by the provisions of the Penal Law. (People v. Enoch, 13 Wend. 159; People v. Darragh, 141 A.D. 408; affd., 203 N.Y. 527, without opinion.) The evidence was such that the jury might have found that although the defendant did in fact shoot Pasquale Alloca he did so with intent to kill one Giovanni Alloca, and the appeal calls in question the ruling of the trial court to the effect that if 'the defendant intended to kill the brother [Giovanni], but struck the complaining witness [Pasquale] with the intention of killing the brother [Giovanni] it would be assault in the first degree' as charged in the indictment. This the defendant claims to be erroneous for two reasons, first, because it authorizes a conviction for a crime not charged in the indictment, and second, because it authorizes the jury to dispense with the element of intent made necessary by the statute under which the

Page 770

indictment is drawn. These two grounds of objection to the judgment (which are in effect identical) are argued with much force and plausibility, the insistence being that a charge of intent to kill Pasquale cannot be sustained by evidence showing an intent to kill another, in this case Giovanni. Support for these objections is sought to be found in Hollywood v. People (3 Keyes, 55) wherein the Court of Appeals held (in 1866) that a charge of assault upon Mrs. Baily with intent to kill her was not sustained by proof that the defendant shot at Mr. Baily intending to kill him only, but accidentally hit Mrs. Baily. This of course would be a controlling authority, if the same statutory definition of the crime now prevailed which did prevail in 1866. The same statutory definition does not, however, prevail, and the present definition is far broader and more comprehensive. The Hollywood case arose under the Revised Statutes, which were then in force, and thus defined the crime with which Hollywood was charged: 'Every person who shall be convicted of shooting at another, or of attempting to discharge any kind of fire arms, or any air-gun, at another, or of any assault and battery upon another, by means of any deadly weapon, or by such other means or force, as was likely to produce death; with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit any burglary, larceny or other felony, or in resisting the execution of any legal process; shall ...


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