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Appeal from Supreme Court, Trial Term,, To appreciate the bearing of the evidence on New York County.

this branch of the case, we must consider some events preceding the killing of Officer Cotter.

Charles De Martini appeals from a judgment of the Supreme Court in the county of New York, rendered on the 28th day of May, 1915, on a verdict convicting him of murder in the first degree. Judgment of conviction reversed, and a new trial ordered. See, also, 213 N. Y. 203, 107 N. E. 501, which the officer was killed. Two pistol L. R. A. 1915F, 601.

James W. Osborne, of New York City, for appellant. Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

There appear to have been two shooting affrays on the evening of the murder. The first occurred in Belmont avenue, which is the next avenue east of Hughes avenue, in

shots rang out in Belmont avenue, at a point East 189th streets, whereupon a crowd gathabout halfway between East 188th and ward East 188th street, following a man ered and began to run or move rapidly torunning in the same direction. The pursuit continued, according to the testimony for the WILLARD BARTLETT, C. J. Patrick prosecution, through East 188th street, down Cotter, a patrolman on the New York City Hughes avenue, past the spot where Officer police force, while on duty in Hughes ave- Cotter was shot, one block to East 187th nue, between East 187th and East 188th street, through the latter street to Hoffman streets, was killed by a pistol shot wound avenue, up Hoffman avenue to East 188th at about half past 7 o'clock on the evening of the 4th of August, 1913. The defendant, an Italian 24 years of age, who came to this country in 1904 and is a barber by occupation, was charged with the homicide by an indictment for murder in the first degree. He has been twice tried and convicted, first in December, 1913, and a second time in May, 1915, on the trial which now comes up for review. The judgment upon the first conviction was reversed by this court and a new trial ordered in December, 1914, for error in permitting the prosecution to impeach its own witnesses. See People v. De Martini, 213 N. Y. 203, 217, 107 N. E. 501, 506 (L. R. A. 1915F, 601) opinion by Werner, J. Judge Werner, in his opinion, said:

street again, along the same to Lorillard place, down Lorillard place back again to East 187th street, and thence along the same to the intersection of Third avenue, where the defendant, who was then 5 or 10 feet ahead of the crowd, was arrested by a police officer, whose home was in the vicinity, and who had rushed out upon hearing the summons of a police whistle. The route of this hue and cry, which appears to have been set in motion by the sound of the pistol shots in Belmont avenue, is delineated on a map or street diagram in the record.

The theory of the prosecution was that the defendant was concerned in some manner with a shooting affray in Belmont avenue; that he fled from the scene thereof, "The one vital perplexing question in the case taking the course which has been described is the identity of the slayer of Officer Cotter." and pursued by an excited crowd; that on [1] Only one witness for the prosecution his way through Hughes avenue he murderclaims to have been an eyewitness of the ed Officer Cotter; and that he continued homicide. This is Salvatore Civiletti, a lad on in his flight until he was taken into cuswho was 16 years old at the time of the tody as has been stated. No pistol was trial. He testified that he saw the police- found upon him; but a loaded cartridge man shot by a man who stood behind a and two empty cartridges were found in an tree, 20 or 25 feet from the officer, who was areaway on Lorillard place through which out in the gutter about 30 feet from the the defendant passed after Officer Cotter witness. This man "was just walking, and was shot. It is argued that the circumstancwhen he got to the tree he stopped." The es connected with this incident justified witness did not see what became of him. the jury in finding that the defendant threw He had on "a light gray suit, or a dark away his pistol and cartridges at this point gray suit, or something"-the witness could in his flight. not tell "because it was just growing dark." He saw no one running after the shooting of the officer. The witness did not identify the man who he thus says did the shooting.

There being no other witness who testified to having seen the shooting, the identification of the defendant as the murderer depends wholly upon circumstantial evidence. The trial judge, however, refused so to instruct the jury. On the contrary, he said: "I hold that this is not a case where a conviction depends upon circumstantial evidence."

The fact that evidently weighed most heavily against the defendant with the jury

The defendant testified in his own behalf, denying all complicity in the murder. He said that he was walking on Belmont avenue with a young woman named Norma Scarenci and a friend, Charles Dellamonico, when they were assaulted by two unknown Italians. An affray ensued, in which the Italians fired two pistol shots, and Dellamonico fell to the sidewalk. Thinking that his friend was killed or wounded, the defendant, although armed only with a razor, pursued the assailants. A crowd of about 200 persons gathered and joined in the pursuit. As it proceeded, the defendant evi

the Italians, the crowd was pursuing him. | against the defendant much stronger than "As I turned around the corner, 187th street it would have seemed to them if they had and Hughes avenue," he says, "a crowd of been told that their verdict depended solepeople were running after me, and throwing ly on circumstantial evidence. In his great stones, bricks, and so forth. I was afraid treatise Prof. Wigmore points out that the they would kill me, being a stranger up rules of admissibility have nothing to say there. I did not know anybody up there, so concerning the weight of evidence when I kept on running." He denies that when once admitted, although judicial utterances he was arrested he knew that Officer Cot- have often dealt with the question whether ter or any policeman had been shot. circumstantial or direct evidence is relatively the more persuasive. 1 Wigmore on Evidence, § 26. Mr. William Wills, the author of a work on Circumstantial Evidence which ranks as a legal classic, says that the best writers, ancient and modern, on the subject of evidence, have concurred in treating circumstantial as inferior in cogency and effect to direct evidence. Wills on Circ. Evid. (5th Ed.) p. 35. The experience of the writer as a trial judge convinces him that such is the view which prevails with jurors, and that ordinarily they will deem a case stronger when based upon direct evidence than if it rests solely on circumstantial evidence to establish the guilt of the accused. It is for this reason that the instruction in the case at bar was so harmful.

On the present as on the prior appeal, the one vital perplexing question is the identity of the slayer of Officer Cotter. There was no direct proof that the man who did the shooting was the defendant; nor was there any direct proof that the shooting was done by the person who was seen flying before the pursuing crowd before or after the policeman was shot. The evidence adduced by the people to identify the defendant as the man who shot Officer Cotter was purely circumstantial, consisting largely of testimony relating to his flight.

[2] The learned trial judge, nevertheless, instructed the jury otherwise, saying: "I hold that this is not a case where a conviction depends upon circumstantial evidence, because there is direct evidence of witnesses who saw the man in front of the crowd, saw the man who was in front of the crowd kill the policeman, and saw the man who was in front of the crowd run into 187th street and these other streets, and saw the man finally captured. If there were two men who were seen in Hughes avenue, and one of the men ran down the street, and this defendant was the man that ran down the street, the question would be one of circumstantial evidence; but you have the direct testimony in this case of a witness who says that he saw the officer killed by the man who ran down immediately in front of the crowd, and he then ran into 187th street and followed the course indicated."

The learned trial judge erred in his recollection of the testimony and thus inadvertently misled the jury. We think that the exception to this instruction requires a reversal of the judgment. There was no There was no direct evidence that the man who was seen pursued by the crowd before and after the homicide was the man who shot the policeman. In telling the jury that there was, the court must have conveyed an erroneous idea as to the character of the proof upon which their verdict would be based. The examination of talesmen upon challenges shows how much more willing the ordinary juryman is to convict upon direct than upon circumstantial evidence. Hence the probable effect of the instruction in the present case was to make the jury think the proof

[3] There is a persistent notion that direct evidence is always of a higher quality, although this court has declared otherwise. People v. Place, 157 N. Y. 584, 52 N. E. 576. The flight of the defendant through the streets at and about the time of the homicide is the strongest part of the circumstantial evidence against him. A portion of his socalled flight, however, preceded the shooting of Officer Cotter, and therefore could not be deemed an attempt to escape from that crime. The further perplexity in the case arises from the inability of the only eyewitness of the murder to identify the defendant as the murderer. The man whom he describes as having shot the officer had been walking, not running, before he stepped behind the tree to shoot, and the witness did not observe what became of him afterward. In a case as close as this, an erroneous statement by the court to the jury to the effect that there was direct evidence of the defendant's guilt cannot be disregarded as harmless.

The judgment of conviction should be reversed, and a new trial ordered.

HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur.

Judgment of conviction reversed, etc.

(219 N. Y. 44)

In re DOWLING et al. (Court of Appeals of New York. July 25, 1916.)

therein adjoining such district, is mandatory; and the division of the county of New York into districts numbered from 12 to 20, inclusive, so that the difference in population between twelfth and thirteenth districts was 1,377, between the fourteenth and sixteenth 1,059, between the fifteenth and thirteenth 516, between the fourteenth and twelfth 236, and between the seventeenth and fifteenth 1,016, and a block on the line between the twelfth and thirteenth districts contained 636 inhabitants, and where other blocks between each of the other districts on the line between such districts contained a less number of inhabitants than one-half of the difference between the population of the districts as stated, even though inadvertently made, was a violation thereof, so that the apportionment could not be sustained.

[Ed. Note. For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. 27.] 4. STATES 27-SENATE DISTRICTS-APPORTIONMENT COMPACTNESS DISCRETION OF LEGISLATURE.

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1. STATES 27-LEGISLATIVE DISTRICTS AND APPORTIONMENT NUMBER OF SENATE DISTRICTS-CONSTITUTIONAL PROVISIONS. Const. art. 3, § 3, divided the state into 50 senate districts, and article 3, § 4, provided that an enumeration of the inhabitants of the state shall be taken in 1905, and every tenth year thereafter, and that such districts shall then be altered by the Legislature, and remain unaltered until another enumeration, that no county shall have 4 or more senators unless it shall have a full ratio for each senator, that no county shall have more than one-third of all the senators, and that the ratio for apportioning senators shall always be obtained by dividing the number of inhabitants, excluding aliens, by 50, and that the senate shall always be composed of 50 members, except that, if any county having 3 or more senators at the time of any apportionment shall be entitled on such ratio to an additional senaConst. art. 3, § 4, providing that each senate tor, such senator shall be given to such county in district as fixed after each prescribed enumeraaddition to the 50 senators, and the whole num- tion of population shall be in as compact form ber of senators shall be increased to that extent. as practicable, and at all times consist of conThe population of the county of Kings, having tiguous territory, and that no county shall be 7 senators, increased from 1894 to 1907, so divided, except to make two or more districts that it was then entitled to an additional sena- wholly in such county, does not provide unqualtor, and the whole number of senators was in-ifiedly for compactness, or require districts to be creased to 51, and under the apportionment ratio in the form of geometric figures, but permits a of 1915 it was entitled to the same number of consideration in good faith of existing lines, senators as by the apportionment of 1907; no other county with more than 3 senators then having a full ratio for an additional senator. The Apportionment Act (Laws 1916, c. 373) provided for 51 senators, and increased the representation of Westchester county from 1 to 2, although its population was less than the number entitling it to 2 senators. Held, that the exception to the limit or number of senators was intended to prevent the larger counties from obtaining a larger number of senators at the expense of the smaller counties, that the additional senator or senators were to be determined in comparison with the number of senators provided by the Constitution itself, and that when, at the time of any apportionment, the number of senators by the ratio as provided is determined, all the counties there entitled to 3 or more senators are to have the number of senators to which they are so entitled compared with the number given to such county by the Constitution, and if any county is entitled to an additional senator such senator must be given to it and the number of senators in the state increased accordingly, so that the division of the state into 51 senate districts would be constitutional, if the act were not otherwise invalid.

[Ed. Note.-For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. 27.] 2. CONSTITUTIONAL LAW 13 - STATUTES

181(2)-CONSTRUCTION.

In the construction of a constitutional or statutory provision, a meaning should not be given to the words construed which will defeat the purpose and intent of the provision, or which will make it absurd.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. 88 9, 10; Dec. Dig. 13; Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. 181(2).]

topography, means of transportation, etc., and differences in population in comparison with considerations of compactness, upon which men of discretion might fairly differ, are matters belonging distinctly to the Legislature, and not to the judiciary, so that, where districts in a county excepting aliens, that the district having the were so evenly divided in number of inhabitants, largest number of inhabitants had but 59 inhabitants more than the district with the smallest number of inhabitants, the Court of Appeals will not interfere.

[Ed. Note. For other cases, see States, Cent. Dig. §§ 28-33; Dec. Dig. 27.1 Appeal from Supreme Court, Appellate Division, First Department.

Petition of Robert E. Dowling and others to review chapter 373 of the Laws of 1916, being the present apportionment of the state into senate and assembly districts, in which Victor F. Kney, intervened. From some parts of an order of the Appellate Division (160 N. Y. Supp. 362), entered July 7, 1916, Which reversed an order of the New York Special Term, dated June 30, 1916, dismissing the petition on the merits, and which order of the Appellate Division also declared the apportionment as set forth in chapter 373 of the Laws of 1916 invalid so far as it provides for 51 senators, and declared. said apportionment invalid so far as it allots 2 senators, instead of 1, to Westchester county, all the parties to the proceeding, including the intervener, appeal. Order re

3. STATES 27-SENATE DISTRICTS-APPOR- versed, and apportionment act of 1916 deTIONMENT-EQUALITY OF POPULATION-CON-clared unconstitutional and void, and appliSTITUTIONAL PROVISIONS. cation of the petitioners granted.

Const. art. 3, § 4, providing that each senate district fixed by the Legislature after each D. Cady Herrick and Robert L. Luce, botb enumeration shall contain as nearly as may be of New York City, for petitioners. William an equal number of inhabitants, excluding aliens, B. Carswell, of New York City, for interand that no district shall contain a greater excess in population over an adjoining district in vener. Elon R. Brown, of Watertown, for the same county than the population in the block respondents.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

CHASE, J. The Constitution of 1894 di-ing a greater number of inhabitants, excluding vided the state into 50 districts, to be called aliens.'

senate districts numbered from 1 to 50 in- In 1906, following the enumeration of the clusive. Const. N. Y. art. 3, § 3. It also provides (article 3, § 4):

inhabitants of the state in 1905, chapter 431 of the Laws of 1906 was enacted by which "An enumeration of the inhabitants of the the Legislature divided the state into 51 senstate shall be taken under the direction of the ate districts, and also apportioned the memsecretary of state, during the months of May and bers of assembly among the several counties June, in the year one thousand nine hundred and of the state. The validity of that act was five, and in the same months every tenth year thereafter; and the said districts shall be so al- assailed in the courts and the act was detered by the Legislature at the first regular ses-clared wholly unconstitutional and void. sion after the return of every enumeration, that Matter of Sherrill v. O'Brien, 188 N. Y. 185, each senate district shall contain as nearly as

may be an equal number of inhabitants, exclud- 81 N. E. 124, 117 Am. St. Rep. 841. ing aliens, and be in as compact form as practi- In 1907 the Legislature again reapporcable, and shall remain unaltered until the re- tioned the state. Laws of 1907, c. 727. Sevturn of another enumeration, and shall at all eral proceedings were brought to have such times consist of contiguous territory, and no county shall be divided in the formation of a apportionment declared unconstitutional and senate district except to make two or more sen- void. The proceedings so brought were either ate districts wholly in such county. No town, dismissed or the application for relief denied. and no block in a city inclosed by streets or public ways, shall be divided in the formation of sen- Matter of Reynolds, 202 N. Y. 430, 96 N. E. ate districts; nor shall any district contain a 87, 416. The inhabitants of the state were greater excess in population over an adjoining again enumerated in 1915. The Legislature district in the same county, than the population of a town or block therein adjoining such dis- of 1916 passed the act now before us for trict. Counties, towns or blocks which, from consideration and it became chapter 373 of their location may be included in either of two the Laws of 1916. It is subject to review districts, shall be so placed as to make said dis- at the suit of any citizen. Constitution, artricts most nearly equal in number of inhab- ticle 3, § 5; Laws 1911, c. 773. The constituitants, excluding aliens. tional provisions relating to an apportionment are the same now as they were in 1906 and 1907. Most of the questions that can arise under the act now before us were considered in the Sherrill Case. So far as the questions were considered in that case it is unnecessary to restate the conclusions then reached.

"No county shall have four or more senators unless it shall have a full ratio for each senator. No county shall have more than one-third of all the senators; and no two counties or the territory thereof as now organized, which are adjoining counties, or which are separated only by public waters, shall have more than one-half of

all the senators.

"The ratio for apportioning senators shall always be obtained by dividing the number of inhabitants, excluding aliens, by fifty, and the senate shall always be composed of fifty members, except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators, and the whole number of sena

tors shall be increased to that extent."

It also provides (article 3, § 5):

"The members of the Assembly shall be chosen by single districts, and shall be apportioned by the Legislature at the first regular session after the return of every enumeration among the several counties of the state, as nearly as may be according to the number of their respective inhabitants, excluding aliens. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of assembly. * * * The county of Hamilton shall elect with the county of Fulton, until the population of the county of Hamilton shall, according to the ratio, entitle it to a member.

Two or more important questions of law are presented on this appeal. The first at least of the following two questions was not considered in the Sherrill Case: (1) Upon the facts disclosed by the record, should the senate be composed of 50, or 51, members? (2) Did the Legislature violate the provisions of the Constitution in forming the senate districts by making one district to "contain a greater excess in population over an adjoining district in the same county than the population of a town or block therein adjoining such district?"

[1, 2] The intention of the people to limit by Constitution the number of senators to 50 is expressed in language that cannot be misunderstood as follows: "The senate shall always be composed of fifty members." That limitation is, however, subject to the exception stated therein. The exception is given "The quotient obtained by dividing the whole for one, and only one, purpose, and that is number of inhabitants of the state, excluding aliens, by the number of members of assembly, to prevent counties having 3 or more senators shall be the ratio for [apportionment], which from obtaining a larger number of senators shall be made as follows: One member of assem- at the expense of the counties of the state bly shall be apportioned to every county, includ- not having 3 or more senators. It is, for that ing Fulton and Hamilton as one county, contain

ing less than the ratio and one-half over. Two purpose, provided that if any county having members shall be apportioned to every other 3 or more senators at the time of any apcounty. The remaining members of assembly portionment, is entitled on the ratio prescribshall be apportioned to the counties having more than two ratios according to the number of in- ed, "to an additional senator or senators, habitants, excluding aliens. Members apportion- such additional senator or senators shall be ed on remainders shall be apportioned to the given to such county in addition to the fifty counties having the highest remainders on the order thereof respectively. No county shall have senators, and the whole number of senators more members of assembly than the county hav- shall be increased to that extent."

In determining what is intended by an "additional" senator the intent of the people in making an exception to the otherwise clear purpose of always confining the senate to 50 members must be kept in mind and the meaning of "additional" determined in view of such intent. The provisions of the Constitution that (1) no county shall have four or more senators unless it shall have a full ratio for each senator, and (2) no county shall have more than one-third of all the senators, and (3) no two counties or the territory thereof as now organized which are adjoining counties or which are separated only by public waters shall have more than one-half of all the senators, and (4) the provision making an exception to the prescribed number of senators all show a purpose and intent to prevent an increase in the number of senators from the larger counties of the state at the expense of the smaller counties of the state. The purpose and intent of the people in making the exception to the prescribed number of senators appears not alone from the Constitution itself, as we have stated, but from the proceedings of the convention, the report of its committee on apportionment, and the address of the convention to the people when the Constitution was submitted to the electors for their consideration and vote. Mr. Lincoln, in his Constitutional History of New York (volume 3, p. 222), says:

"Mr. Root, referring to the action of the Convention of 1846, establishing 32 senate districts, said that 'since that time increase in population has occurred in the great cities, and the effect of reapportionment, with the number remaining at 32 and giving new senators to the great cities, is to take away senators from the country; so that the country districts have been continually enlarging, until they have reached a point where a senator cannot properly represent the whole people of his district. The main object of fixing 50 as the number of senators is to bring the senatorial districts, widely extending, as they are, in the country, back substantially where they were with 32 under the apportionment of 1846. So that the evil arising from the continual enlargement of the districts, because of the continual sending of new senators to the cities, will be removed by the increase of number.' I have already quoted Mr. Brown's statement that, under the new apportionment, 11 senate districts were identical with 11 under the convention apportionment of 1846. Mr. Root said that fixing the number of senators at 50 puts the senatorial districts in such a position that they can be well represented, each one by a senator; and it puts the Senate at such a point that it can properly perform the peculiar functions imposed upon it by our system of government, functions calling for great consideration and requiring in their deliberations a small body of men.'"

A member of the constitutional convention, in proposing an amendment to section 4 of article 3 substantially as subsequently adopted, said:

"I am going to offer an amendment. And after hearing this debate and looking over this question thoroughly on both sides, appreciating fully that there should be some allowance for an increase in the cities, but that at the same

at the expense of the country districts, it ought to be limited, we have unanimously decided to offer to our proposition the following amendment. * * Revised Record of Constitutional Convention, vol. 4, p. 37.

In one of the debates it was said by a minority member:

"It provides that when in counties having 3 or more senators the population increases so that an additional senator may be had, they shall be added to the total number of senators. And I will illustrate; we will assume that 10 years from now the state of New York has 6,000,000 people. That divided by 50, the manner in which the ratio is to be determined, of New York at that time shall have 1,800,000 will give 120,000 for each senator. If the city inhabitants, it will be entitled to 15 members. That is 3 more than it has under this apporbe to give New York 3 additional senators and tionment. Therefore all that can be done will add 3 to the total number of senators in the state. And it will not in any way change the country districts. In other words, this scheme contemplates simply that the present apportionment may always remain, but you may add on a district when it has sufficient to give it another senator." Revised Record of Constitutional Convention, vol. 4, p. 648.

The convention in its address to the people said:

"Since 1846 the great increase of population in the cities entitling them to additional representation in the senate has required a corresponding decrease in the representation of the country districts, so that those districts have been constantly enlarged and their representation in the senate has been constantly decreas ed. The object of the proposed increase is to restore the country districts to substantially the same position in which they were in 1846, and to provide for the increased representation of the cities by the increase in number, so that there will be effective representation of the country as well as of the city districts. ** We believe the provision to be sound in principle, that somewhere in every representative government there should be a recognition of variety of interest and extent of territory as well as of mere numbers united in interest and location.

"Such a departure from the rule of strict numerical representation is recognized by the Constitution of the United States in the organization of the senate, by the Constitution of the state of Pennsylvania in limiting the representation which the city of Philadelphia may have in its senate to one-sixth of its members, and by the Constitution of the state of Maryland in limiting the representation which the city of Baltimore may have. Similar provisions have been adopted by the state of Ohio affecting Cincinnati and Cleveland, the state of Missouri affecting St. Louis, and the state of Rhode Island affecting Providence, and by other states of the Union having large cities. It is the rule, rather than the exception, throughout the Union."

If the contention of the opponents of the act of 1916, so far as it relates to the number and apportionment of senators is concerned, is sustained, then the purpose and intent of the people in enacting the Constitution of 1894 in that respect has failed. The population of the county of Kings increased from 1894 to 1907, so that in accordance with the Constitution it was entitled on the apportionment in 1907 by the prescribed ratio to an additional senator to be elected from that

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