People v. Giammatto

273 A.D. 1023, 79 N.Y.S.2d 219, 1948 N.Y. App. Div. LEXIS 5833

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1948
• Status: Published

Opinion

Judgment of the County Court of Kings County, convicting defendant of the crime of murder in the second degree, reversed on the law and the facts and a new trial ordered. The trial court committed reversible error (1) in charging the jury at folio 1062 of the record on appeal, that “ The wicked flee even when no man pursueth; but the righteous are bold as a lion ”, and that “ flight from justice and analogous conduct * * * have always been deemed indicative of a consciousness of guilt ” (see Hickory v. United States, 160 U. S. 408); (2) when, in reading subdivision 1 of section 1055 of the Penal Law, in connection with charging the jury on the question of justifiable homicide, at folio 1077 of the record on appeal, it omitted the phrase “or to any such person”; and (3) in charging the jury at folio 1109 of the record on appeal, that in order to render a verdict of guilty of manslaughter it was necessary to find that the homicide was committed both with a revolver and in a cruel and unusual manner. (See Penal Law, § 1050, subd. 2.) Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.