People v. Cuozzo , 292 N.Y. 85 ( 1944 )

About three o'clock on the afternoon of April 6, 1939, Lois Tryon, nineteen years of age, of robust health, and happy disposition, soon to graduate from high school, and living with her parents in a farming district of Livingston County, left her home to take a walk. Proceeding easterly along the Old State Road she passed the home of the Flynn family, and spoke to one of the Flynns saying that there was nothing better than walking for exercise. About a mile or a mile and a half to the east of the Flynn home, she came to the store of one Patanella. She entered the store, purchased a chocolate candy bar, and left the store about 4:00 or 4:30 and proceeded southerly on York Road. She was next seen by Frank Cuozzo, a brother of the defendant, when she passed the Cuozzo home. Frank Cuozzo is a member of a family which then consisted, in addition to his mother, of his wife, their three children, his two brothers, of whom the defendant was one, and two of his sisters. As the young woman passed that home she was identified by Dominick Cuozzo, a brother of Frank and of the defendant. At that time the defendant was in the barn doing some chores. At about 4:30 or 4:45 Frank Cuozzo was driving his truck toward what is known as the Donnan barn. In the truck with Frank were his brother Dominick, the defendant, a brother-in-law and another man, four of the men being in the cab of the truck and the defendant being in the rear of it. Frank Cuozzo saw the young woman again as the truck was nearing the barn. She was still continuing in a southerly direction. When the truck reached the barn, the defendant and two of the men left it, and Frank Cuozzo and his brother-in-law drove away. Lois Tryon next was seen when passing the home of one Cleveland. She was next seen by three girls about 4:30 between 400 and 500 feet north of Teed's Corners still walking south on the York Road. They waved to her and she waved in return; she was not again seen alive.

The following morning a portion of her dismembered body was discovered by two railroad patrolmen some 1,300 or 1,400 feet south of Teed's Corners. Parts of the body were strewn over a distance of a quarter of a mile.

More than three years later, on September 4, 1942, the defendant was arrested by two deputies sheriff. He was arrested, "on a morals charge," as his counsel describes it. After his arrest he was taken to the county seat at Geneseo and since it was too late for him to have dinner in the prison he was taken to a restaurant in that village. While at dinner the defendant "spoke up and asked if we (the deputies sheriff) had ever found out who killed the Tryon girl." That seemed significant to the arresting officers and he was immediately taken to the Livingston County Jail and in the late hours of the same night he was taken by the sheriff and two deputies to the Donnan barn on the Leicester-York road, to which reference has been heretofore made. There he was questioned and he confessed that he had attacked the deceased and thereafter had rendered her unconscious by striking her with a bar and then placed her upon the railroad tracks. The defendant made subsequent confessions some oral and some transcribed by a stenographer and subscribed by defendant. It is unnecessary to go into the details at length. In one which he subscribed after relating his attack on the deceased near the gap in the fence he said: "I walked along beside her until we reached the fence on the west side of the railroad tracks. I held the fence while she got over and then I got over. After getting over the fence we climbed up to the tracks. She turned and walked toward the south along the path on the west side of the tracks. I walked right behind her as the path was narrow. After we had walked a short distance I saw a piece of iron bar lying alongside the tracks and stooped and picked it up. She did not see me do this. A short distance before we reached the trestle, I grabbed her right arm with my left hand and swung her around and hit her on the forehead just above the nose with the iron bar which I was holding in my right hand. I struck her with this bar either three or four times. She fell to the ground beside the track. There are four rails and she fell beside the west rail. After she fell to the ground she was quiet but was still breathing. It was getting dark at this time. I then dragged her body a little further south and placed her over the west rail with her back on the rail. I knew she was mad and I was mad too. I was scared that she was going to tell some one what had happened and then what would happen to me. I thought that if I knocked her uncon out and then placed her body on the track so that a train would run over and kill her that no one would find out what I had done. When I placed her body on the track I noticed that her stomach was going up and down a little and that is the way I knew she was still breathing. She did not say anything or make any sound after I had placed her body on the track. I then went down the bank beside the track by a telephone pole and waited for a train to come by. I put her body on the west track because I knew that the next train that went down would go over this track. I must have waited about 15 or 20 minutes before the train went by. It was a passenger train as I recall. When the train had gone by I went up the bank to the tracks. I saw the train had carried her body beyond the trestle. I was very scared and started for home at once. I ran and walked down the rail road tracks until I reached a point opposite myhome Goodwins lane and then went down the lane and into the road and to my house. My mother and two sisters were in the house. I sat up a little while and then went to bed. I had had my supper before I started to the milk house with my brother Frank and the other boys."

It seems to us that there are details in that confession which could not have been known to anyone who had not lived through the episode, and could not have been learned from the lips of his neighbors.

There is another matter which the defendant could not well have so learned. Orders were given to make an inspection of all trains arriving at Hoboken on the morning of April 7, 1939. The only evidence that a train had struck a human being was found on the baggage car of train 20. The baggage car was the head car, immediately behind the engine. The engine had been changed at Elmira and was not inspected. On the baggage car in between the spring and spring sections there were found small pieces of flesh and hair. Those were found on the front end at the southeast corner of the car. (It was headed east.) The hairs were examined one week after the accident and were later compared with a sample of the hair of the deceased and were found to be "identical in color, in size, in texture, in pigmentation and (are) compatible." Train No. 20 ran from Buffalo to Hoboken on April 6, 1939. It left Buffalo at about 6:30 P.M., and passed Teed's Corners Crossing about 7:05 P.M. The defendant said he placed the body of deceased on the rail of the west track toward the Leicester Road. That is the rail over which the southeast corner of the baggage car passed as it headed east and the corner on which the flesh and hair were found.

It is true that the defendant amplified and made changes in his confessions as they were made by him from time to time. There is no testimony in this case that any confession was obtained improperly. There was no denial by the defendant of the truth of any of the confessions. It seems to us that whether the confessions were made, whether they were truthful confessions and whether the defendant had the capacity mentally to make the confessions was a question for the twelve men who sat upon the jury. (People v. Buchalter, 289 N.Y. 181, 230; People v.Peller, 291 N.Y. 438.) We cannot say as a matter of law that a man of his type would not be more egotistical in one confession than in another or even more boastful in some than the facts warranted. That is not unusual regardless of mental grade. He did not know what the autopsy would disclose. Moreover, it is not unusual that after three and one half years more details would come to the top of a man's mind in subsequent confessions than in the initial one.

The defendant was twenty-nine years of age with the mentality of one of nine and one-half years. There is, however, no question here of legal insanity. The defendant was committed by the court to the Rochester State Hospital and he was there for three months. The report of the Superintendent showed that he knew the difference between right and wrong and had no sense deception, false ideas or other evidence of psychotic symptoms. In addition the doctor at the psychiatric clinic at Attica State Prison who specialized in criminal psychology examined the defendant. That doctor said that the defendant "was somewhat retarded mentally, classified as a mid-grade moron, but without any evidence of psychosis or insanity" and that defendant had the capacity to make a valid confession. The defendant went with him to Teed'sCorners and made a full confession to him. The defendant called no doctors to testify that he was insane.

That the defendant had a fair trial is best attested by the language of his own counsel to the jury: "At the outset I want to say in reference to Mr. Horton that I have never sat through the trial of a law suit where I have received the courteous, careful attention and aid that Mr. Horton has given me in this law suit. Whenever there was a paper that he had I have been furnished with a copy of it, and I can't speak too highly of the manner in which he has presented this case as the District Attorney. My experience with district attorneys is far different. Mr. Horton has no love of the chase or the kill. He has presented his law suit in the fairest way that I have ever in my life time seen a district attorney present a case, and I can't help but express my appreciation of it to him and to you."

It seems to us that the jury properly inferred that the deceased came to her death by foul means entirely apart from any confession. Indeed it may be said that the facts compelled that inference. Before the defendant confessed his guilt there was a presumption that he was not concerned in her death. That was the presumption of innocence to which he was entitled. There was no presumption that the death of the deceased had been "caused in any particular way, whether by suicide, by the defendant himself through innocent misadventure, or by the act of some one else, undetected or unknown" or by misadventure of the deceased upon the railroad track. (People v. Miller, 257 N.Y. 54, 61.) The jury could well find that the deceased had not committed suicide for the testimony showed that she was not unhappy nor worried nor ill nor despondent nor moody. On the contrary, as we have indicated (supra), the testimony was that she was a strong, robust, athletic, happy young girl of nineteen years. She was enjoying the Easter holidays. As she proceeded along she told one Flynn that there was nothing better than walking for exercise. Three girls waved to her a short distance from Teed's Corners where she was last seen and she waved in return. Apparently she was happy in her associations with girls of her age. The autopsy showed that she was a virgin. There was no semblance of support for a suicide theory.

The jury could have considered the possibility of accident on the assumption, although there was no evidence of it, that the deceased walked along the railroad track and was struck by a train. The difficulty with that hypothesis was that the deceased waved to the three girls at about 4:30 o'clock when she was approximately 450 feet north of Teed's Corners. When her body was found, a considerable portion of it was 1,300 or 1,400 feet south of Teed's Corners. The train that struck her, passed Teed's Corners' Crossing at about 7:05 P.M. That was two and one half hours later. Clearly it did not take two and one half hours to walk 2,000 feet. If the deceased had walked 1,400 feet from Teed's Corners south along the railroad track and had stumbled and fallen, she must have lain there for two and one-half hours. But if she had lain there for that period of time, she would not have been struck by train No. 20 at 7:05 P.M. but by a train that passed over the same track and the same spot at approximately 5:19 P.M. It would have been bright daylight at that time in April and she would have been seen. At any rate she would not have been struck by train No. 20. In addition, a train passed that spot on the other track (west) at approximately 6:36 P.M.

The jury might properly infer, therefore, as it did, that the death of the deceased, since due neither to suicide nor her own misadventure, was the result of the criminal act of some person. They believed the defendant's confession that he was that person but there was proof of someone's crime without the confession.

That leaves but one question and that is whether the prosecution complied with the requirements of Code of Criminal Procedure, section 395, providing that a confession is not sufficient to warrant a conviction "without additional proof that the crime charged has been committed."

The majority opinion leans heavily upon People v. Deacons (109 N.Y. 374) but the decision and language in the opinion in that case have been explained in the later case of People v.Brasch (HISCOCK, J.) (193 N.Y. 46, 62) as follows: "In People v. Deacons (109 N.Y. 374) there was presented to the court for review a judgment of conviction in a murder case which was based largely on a confession of the defendant. In that case it was claimed that the finding of the body of the murdered person was not such additional proof as was required by the Code. The court said in answer to this contention, however: `That is a mistaken construction. The crime charged was the murder of Mrs. Stone. That fact was conclusively proved by the finding of her dead body with the unmistakable marks of a murder committed. The meaning of the Code is that there must be some other evidence of the corpus delicti besides the confession, the purpose being to require some proof of the death and the violence which caused it, outside of and beyond the mere confession of the prisoner. In a case where the body is not found, and there is no proof of violence or of death except by the confession of the accused, that confession will not suffice. There must be some other evidence of the existence of the criminal fact to which the confession relates. The Code but repeats the pre-existing rule that "there must be proof aliunde of the corpus delicti, although such proof need not be conclusive." In that case it is true that the dead body of the victim did, as stated by the court, bear `unmistakable marks of a murder committed', whereas in this case the body bears no marks indicating whether the deceased got into the water through one agency or through another. But what was said by the court is broad enough to indicate that the dead body found under the circumstances disclosed in this case itself furnished some additional and corroborative evidence without such marks."

In the Brasch case the defendant had confessed that he had pushed his wife into the water where, after a brief struggle, she sank and was drowned. She was found in the water at a point indicated in the confession. The body contained no marks, however, which would indicate that a crime had been committed. This court through Judge HISCOCK said: "The death of the deceased concededly has been sufficiently established `by direct proof,' her dead body having been found and fully identified. But it is insisted that the other essential fact, `of killing by the defendant,' has not been sufficiently established. In support of this general claim defendant's counsel by exceptions to the charge as made and by requests to charge, which were refused, has presented and now argues the propositions, first, that the criminal agency of the defendant under the first section cannot be established even in part by his confession, and, secondly, that if such confession could be utilized at all for the purpose of establishing such criminal agency it is not corroborated or supplemented by `additional proof' within the meaning of the latter section quoted. This last proposition reduced to its most favorable form is that there is no proof in addition to his confession tending directly and specifically to prove the fact that defendant placed his hand on his wife and pushed her into the canal; that the dead body does not give any sign that the deceased was pushed into the canal by the defendant as distinguished from jumping or accidentally falling into the water, and that, therefore, it was error for the court to hold in effect that the finding of such body might be considered as a fact in corroboration of defendant's confession and tending to establish that he was guilty of the crime charged.

"This court already has so fully rejected the first proposition, that a defendant's confession may not be at all considered in establishing the commission by him of the crime charged, that we need only refer to the cases on that point. (People v. Jaehne, 103 N.Y. 182, 199; People v. Beckwith,108 N.Y. 67, 74.)

"In like manner I think that both reason and authorities are opposed to the second proposition, that in this case the facts proved outside of the confessions, including the finding of the dead body, do not satisfy the requirements of the statute, even though such additional evidence does not amount to direct proof of defendant's murderous act.

* * * * * * *

"It is true that the additional evidence does not picture the defendant in the very act of pushing his wife into the water, and it does not describe any particular mark on her body decisively proving that she was pushed in rather than that she fell in. Very probably it does not so conclusively establish the crime charged that we should be willing to affirm a conviction based on it alone. But that is not the question before us. It is notnecessary that it should be sufficient to convict defendantindependent of the confession. The question is whether there isany evidence in addition to the confession reasonably tending toprove the crime and thus corroborate the confession. And it is impossible to answer this question in the negative when we confront the practically undisputed facts which I have already sufficiently stated. It would shock common sense to say in the light of the confession that all of these circumstances do not in any degree tend to prove a crime, and that the requirements of the statute have not been satisfied, and that the defendant should be discharged because some other impossible evidence hasnot been produced."

Moreover, prior to the Deacons case ANDREWS, J., writing inPeople v. Jaehne (103 N.Y. 182, 199, 200) had laid down the applicable rule as follows: "It is insisted that under the statute the corpus delicti must be proved, or evidence given tending to prove it, wholly independent of the confession, and that no evidence was given, which, disconnected with the confessions, had a legal tendency to prove the body of the crime. * * * But we are of the opinion that when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirement of the statute. The words of the statute, `additional proof that the crime charged has been committed,' seem to imply that theconfession is to be treated as evidence of the corpus delicti, that is, not only of the subjective criminal act, but also the criminal agency of the defendant; in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction. `Full proof' said NELSON, Ch. J., in People v. Badgley (16 Wend. 53, 59), `of the body of the crime, the corpus delicti, independently of the confession, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient.'" (Emphasis supplied.)

Very recently we approved the Jaehne case and the following charge as correctly stating the applicable doctrine: "Full, direct and positive evidence of the corpus delicti, that is, death as the result of the criminal agency of another as the means independent of the confession is not required. It is sufficient to warrant a conviction if corroborating circumstances are shown which, when considered in connection with the confession are sufficient to establish the defendant's guilt in the minds of the jury beyond a reasonable doubt." (People v.Conroy, 287 N.Y. 201, 202.)

Judgment should be affirmed.

LEHMAN, Ch. J., LOUGHRAN, RIPPEY and THACHER, JJ., concur with DESMOND, J.; CONWAY, J., dissents in opinion in which LEWIS, J., concurs.

Judgment of conviction reversed, etc.