State v. Creste , 27 Del. 118 ( 1913 )

Conrad, J.,

delivering the opinion of the court:

We are of the opinion that if the defendant did receive information from the post office inspector who had investigated the case, and from other sources, from which he believed, and was justified in believing, at the time he committed the fatal act, that the deceased had threatened his life or was a member of a society that made such threats, and the prisoner believed he was then in imminent danger of suffering death or great bodily harm at the hands of the deceased, the information is admissible. It will be for the jury to say whether the prisoner was justified in believing from the information he received that he was in such danger. The objection to the question which we have had under consideration is overruled.

The jury were requested to return to the box, and the questian was read to the witness:

“Q. What, if anything, did you do with those letters, when you went to Mr. Plummer’s office?”

“A. I gave Mr. Plummer the letters.

“ Q. Acting on information, or what Mr. Plummer told you, did you send any one to Philadelphia; and if so, whom?

“A. I sent Frank.

“Q. Who is Frank?

“A. My son.

“ Q. Who went with Frank ?

“A. Mr. Plummer.” .

The two letters above referred to and another, all written in Italian, together with the translations, were admitted in evidence, subject to a motion by the state to strike out if not properly connected.

The prisoner then testified that he received other letters from what he believed to be the Black Hand Society after taking the first letters to Inspector Plummer; that while receiving these letters Richardo was frequently in his house at nights and knew all about the matter, and that Richardo said to Creste: “You had better settle this thing, or you will get killed some of these days. You had better give me $1,000 and I will go up there and settle with the people.” The prisoner continued: “I said: ‘I don’t have no money; I can’t raise no money to pay this one thousand dollars, because I don’t own that much.’ He said: ‘Well, you sell this property and raise the one thousand dollars if you haven’t one thousand dollars. You get one thousand dollars some place and give it to me, and I go up and pay and fix this thing up with the people and you have no bother no more and nobody will threaten you any more.’ The last time he told me this was on Friday before the fight. At that time he said: 'You want to get that $1,000.’ I said: ‘Tony, you know that I don’t have that much money. ’ He said: ‘You had better go get this one thousand dollars; if you don’t, I’ll kill you.’ ”

Letters to the prisoner dated - August 3rd, September 6th, September 19th, September 27th, October 4th, October 7th, October 31st, and November 7th, 1912, having been identified and admitted in evidence, were read to the jury by the prisoner’s counsel, who then rested.

In rebuttal the state was allowed, against objection, to prove that the prisoner had said in the presence of a witness that a man "from Wilmington was writing him the Black Hand Society letters; also that Creste had asked Richardo on the evening of the day when certain of the letters were received from the said society to go to Washington Park and meet the man in the boat, as the letter suggested, and that Richardo turned around and said: “They are likely to upset the boat and drown me. I’ve got two little children. What do you want to do; leave my little ones out in the street?”

The state was also allowed to show by another witness, against the objection of the prisoner’s counsel, that Richardo during the time the letters were being received said, in the presence of Creste: “I’ve got two children. I can’t leave them to sleep in the nighttime; they are always afraid of them (meaning the Black Hand Society). I’m always watching the house in the nighttime.”

Witness also stated that he saw Richardo, while the letters were being received, watching the house at night with a gun.

Prayers for the State.

If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder. State v. Honey, 6 Penn. 150, 65 Atl. 766. The prisoner must show that what he did was only for the purpose of saving his own life or to escape great bodily harm; neither fear nor apprehension of death or of great bodily harm will totally excuse one for killing another, but to have effect in law, the danger must be imminent and impending at the instant, and must be real, not imaginary. He must have declined the combat and retreated from his assailant as far as he could do so consistently with his own safety. State v. Hollis, 1 Houst. Cr. Cas. 27. The jury must be satisfied that the peril or danger was such as would justify an ordinarily prudent man in taking such measures of defense. It is not what a man may see fit to think in such strait, but what an ordinarily prudent man would do, and what the prisoner reasonably believed from the circumstances surrounding him and known to him at that time. State v. Emory, 5 Penn. 131, 58 Atl. 1038.

Neither the mere fact that an attack was made upon the prisoner by the deceased, nor the fact that the deceased had made threats against the prisoner, would justify the shooting of the deceased, unless the prisoner had reasonable cause to believe, and did believe at the time of the shooting, that he was in imminent danger of death or great bodily harm and that he had no other reasonable means for preventing death or great bodily harm. State v. Wiggins, 7 Penn. 133; 76 Atl. 632. Even though the prisoner believed that the deceased wrote the threatening letters, or was associated in design with the person who wrote them, yet that circumstance alone would not be a justification for the killing. Such circumstance is to be taken into consideration with all the other circumstances, to determine whether or not the prisoner was placed in jeopardy such as the law of self-defense would justify the resort to the employment of a deadly weapon, and killing the deceased.

The defendant requested the usual prayers applicable to the facts of the case.

Conrad, J., charging the jury:

Gentlemen of the' jury:—The prisoner, Antonio Creste, is indicted for the murder of Antonio Richardo, on the fifteenth day of December last, in Mill Creek Hundred, in this county.

The prisoner admits that he took the life of the deceased, but contends that he did so in necessary self-defense.

[3-5] Homicide is the killing of one human being by another. Felonious homicide is of three kinds: Murder of the first degree, murder of the second degree, and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart. As here used this term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disergard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.

[6-9] Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways; as, for instance, by lying in wait for the deceased, or by antecedent menaces or threats that disclose a purpose on the part of the prisoner to commit the act charged, or by a former grudge, ill will, spite, hatred, or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the accused toward his victim at the time when the crime was committed. The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a delibcrate formed design to kill. All homicides with a deadly weapon are presumed to be malicious until the contrary appears by the evidence, and the burden of proof to the contrary lies on the accused. Where the killing by a deadly weapon is admitted or proved, malice aforethought is presumed, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, as the natural and probable consequences of the act are presumed by the law to have been intended by the person in using a deadly weapon. If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder.

[10] Murder in the second degree is where the killing was done with implied malice. Implied malice is an inference or conelusion of law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life or to perpetrate a crime punishable with death, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter.

[11] Manslaughter is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter, the provocation must be very great—so great as to produce such á transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved spirit and is characterized by malice, manslaughter results from no malignity, but from unpremeditated and unreflecting passion.

[12] No looks or gestures, however insulting, no words, however opprobrious or offensive, can amount to a provocation sufficient to excuse or justify even a slight assault. Nor can a slight assault excuse the killing of an assailant with a deadly weapon, so as to reduce the offense from the grade of murder to that of manslaughter.

[13-15] The burden of establishing self-defense to the satisfaction of the jury rests upon the prisoner. In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary for that purpose, he becomes the aggressor. A man may defend himself against his assailant, but he cannot do so as he pleases. If one be assaulted with the fist he may not defend himself with a club or a deadly weapon, because the defense is disproportioned to the offense, and if in such defense death ensues, the law implies malice from the character of the weapon used. It is for the jury to determine, under all the circumstances of the case, whether the prisoner was justified in using a deadly weapon in self-defense at the time and in the manner proven in the testimony. You must be satisfied that the peril or danger was such as would justify an ordinarily prudent man in taking such measures of defense. It is not what a man may see fit to think in such strait, but what an ordinarily prudent man would do, and what the prisoner reasonably believed from the circumstances surrounding him and known to him at that time.

If you believe from the evidence that the deceased did first attack the prisoner, and that the prisoner had previously received information which led him to believe and which justified him to believe at the time he committed the fatal act that the deceased had threatened his life or that the deceased was in any wise connected with the threatening letters introduced in the case, then such threats and letters taken in connection with the character of the attack made upon the accused by the deceased become the proper subject for your consideration in determining whether or not the deceased by his acts created in the mind of the accused, at the time of the shooting, a reasonable belief that he was in danger of death or great bodily harm.

[16] No one may take the life of another, even in the exercise of the right of self-defense, unless there is no other available means of escape from death or great bodily harm. If the jury are satisfied from the evidence that the deceased first attacked the prisoner, and that from the character of such attack the prisoner had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and that he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased was a justifiable act of self-defense, and the prisoner should be acquitted of any crime whatever.

[17] The good character of an accused person, when proved, is to be taken in connection with all the other evidence in the case, and is to be given just such weight, under all the facts and circumstances of the case, as in the judgment of the jury it is entitled to.

[18, 19] In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt must inure to his benefit, and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague or speculative doubt, but a reasonable substantial doubt, remaining, in your minds after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.

[20] Under this indictment, if the evidence shall so warrant you, you may find the prisoner guilty in manner and form as he stands indicted—that is, guilty of murder in the first degree—or guilty of murder in the second degree, or guilty of manslaughter, or not guilty. The matter is in your hands for your intelligent determination.

Verdict, not guilty.