COURT OF APPEALS.

January 7, 1919.

#### THE PEOPLE v. ATTILIO DE SIMONE.

(225 N. Y. 261.)

(1.) Appeal—Non-unanimous decision of Appellate Division affirming a judgment of conviction—Court of Appeals must examine RECORD TO ASCERTAIN WHETHER THERE IS EVIDENCE TENDING TO SUPPORT VERDICT OF GUILTY.

Where a decision of the Appellate Division affirming a judgment convicting a defendant of murder in the second degree is not unanimous the Court of Appeals must examine the record to ascertain, as a question of law, whether there is evidence tending to support the verdict of guilty, and also to ascertain whether any alleged error, raised by an exception at the trial, has validity.

(2.) Same—Evidence—Erroneous reason for receiving competent and ADMISSIBLE EVIDENCE NOT SUFFICIENT GROUND FOR REVERSAL OF JUDGMENT.

Where evidence is competent and admissible it is immaterial that an improper ground for receiving it was stated, and a judgment convicting a defendant of murder in the second degree will not be reversed for such alleged error.

(3.) Same—When statements made by witness admissible as explanation OF THE CONDUCT AND ACTS OF THE WITNESS.

Upon the trial of defendant herein a police officer who helped in the arrest of the defendant testified that, hearing a shot, he was running to the place from which the sound came and as he reached a street corner "somebody in the crowd hollered ‘He ran over Houston Street,’ ” and looking he saw the defendant running and followed him, overtaking 1dm as another officer stopped him. He found upon the ground near the defendant the pistol which was introduced in evidence. Defendant’s counsel objected to the statement of the witness that " ‘somebody in the crowd hollered,’ as incompetent, irrelevant and immaterial, hearsay in the absence of this defendant and not binding on the defendant.” The court overruled the objection on the ground that the testimony was part of the *res gestae. Held,*that the testimony, although hearsay, was com*336petent, not as of the *res gestae,*but as part of the relevant explanation and description of the acts of the witness, in acquiring the testimony given by him.

People v. De Simone, 181 App. Div. 840, affirmed.

(Argued October 30, 1918;

decided January 7, 1919.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 1, 1918, which aflirmed a judgment of the Court of General Sessions of the Peace in the county of New York rendered upon a verdict convicting the defendant of the crime of murder in the second degree.

The facts, so far as material, are stated in the opinion.

*Frank*Moss, *Isidor Wels*and *Caesar B. F.*Barra, for appellant.

The court improperly admitted evidence of remarks ky a stranger on the street, after the alleged homicide. (Chamberlayne on Evidence, § 2597; Bradshaw v. Commonwealth, 10 Bush [Ky.] 576; State v. McCoy, 111 Mo. 517; Campbell v. State, 30 Tex. App. 645; Bishop’s New Crom. Pro. [2d ed.], § 1087; Flynn v. State, 43 Ark. 289; Fittin v. Sumner, 163 N. Y. Supp. 443, 176 App. Div. 617; Greenfield v. People, 85 N. Y. 75; People v. Decker, 143 App. Div. 590; Homer v. Everett, 91 N. Y. 641; Ex parte Kennedy, 57 S. W. Pep. 648; Wharton’s Crim. Evidence [10th ed.], § 270; People v. Marendi, 213 N. Y. 600.)

*Edward Swann,*District Attorney (Robert C. Taylor of counsel), for respondent.

In view of Harson’s testimony, the bystander’s utterance was receivable to show why Harson changed his course and .acted as he did. (People v. Taylor, 36 Hun, 639, 3 N. Y. Crim. 297, 101 N. Y. 608; People v. Prince, 143 App. Div. 524; Coleman v. People, 58 N. Y. 555; Cowen & Hill’s Notes [ed. 1839], 562, n. 432; Wigmore on *337Ev., §§ 416, 655, 730, 1130, 1791; People v. Lindsay, 63 N. Y. 143; People v. Robinson, 163 App. Div. 853, 212 N. Y. 569.) The utterance was a verbal act, and admissible as part of the *res*gestee, so called. (Bish. New Crim. Pro. [2d ed.], § 1086; Chamb. Mod. Law of Ev., § 2597; Wigmore on Ev., § 1755; Milne v. Leisler, 7 H. & N. 786; Lord George Gordon’s Case, 21 How. St. Tr. 542; People v. Most, 128 N. Y. 108; Hine v. N. Y. El. R. Co., 149 N. Y. 154, 162; Greenl. on Ev., §§ 108, 109; Messmer v. H. W. Boettger Silk F. Co., 160 App. Div. 519; Wigmore on Ev., § 1770; Hallaban v. N. Y., L. E. & W. R. R. Co., 102 N. Y. 194.)

Collin, J.:

The defendant was convicted by the verdict of a jury of murder in the second degree, in that he shot and killed Alexander Della Rosa. The judgment of conviction was affirmed by the non-unanimous decision of the Appellate Division. Because "the decision of the Appellate Division was not unanimous we must examine the record presented to us to ascertain as a question of law whether there is evidence tending to support the verdict. (People v. Smith, 162 N. Y. 520, 15 N. Y. Crim. 1.) We must, additionally, ascertain whether any alleged error •raised by an exception at the trial has validity. (People v. Grossman, 168 N. Y. 47; People v. Sherlock, 166 N. Y. 180.)

It is manifest in an examination of the record that there was evidence from which the jury were justified in finding the defendant guilty of the crime of which he was convicted. That conclusion is not, and could not be, seriously combatted by the briefs and argument of his counsel. He does, however, urge before us several alleged errors. We have concluded that one •only of them merits discussion in an opinion, the facts relative to which are: The shooting occurred on July 25, 1916, at about seven o’clock and fifteen minutes in the afternoon on the west side of Thompson street in the city of Yew York. Thompson *338street runs north and south. At the distance of about eighty feet south from the place of the shooting, Thompson street is intersected by West Houston street, running east and west. The people had as a witness in their behalf Charles E. Harson, who testified: At the time of the shooting he was a police officer on duty on Thompson street; while standing on the east side of that street at a point about seventy-five feet south of West Houston street he heard the firing of five or six shots at a point on the west side of Thompson street and north of West Houston street; he immediately ran to the north, crossing Thompson street from the east to the west side diagonally as he ran; in crossing a wagon in front of him barred his view of Thompson street to the north; as he, having crossed West Houston street, was at a point on the west side of Thompson street about ten feet north of the northwest corner of those streets somebody in the crowd hollered, “ He ran over Houston street; ” he immediately turned and looked over West Houston street and saw, for the first time, about twenty-five feet from that corner and running westerly in that street, the defendant, whom he pursued; he did not notice, at that time, any one else running westerly on that street; when he reached the defendant another officer had stopped him; he found upon the ground near the defendant the pistol which was introduced in evidence. When, in giving his testimony, he had said that *“*somebody in the crowd hollered ” the defendant’s counsel objected to his stating what was said “ as incompetent, irrelevant and immaterial, hearsay in the absence of this defendant and not binding on the defendant.” The court overruled the objection, stating: “ I think it may be stated that he heard shots and ran. I think it is part of the *res*gestes." The defendant excepted to the ruling.

We have concluded that the testimony thus objected to was competent, not as of the *res*gestee, but as a part of the relevant explanation and description of the acts of the witness.

The testimony is manifestly hearsay. The main or principal *339transaction being investigated and adjudged, through and by virtue of the trial, was the shooting, the circumstances and conditions attendant upon or surrounding it and was it done by the defendant under those circumstances and conditions. In the investigation, deeds and statements of the participants in the transaction, or of observers of it, which accompanied, emanated from and were a part of it, could be detailed by witnesses who saw or heard them. Deeds and acts which explain, describe or characterize the transaction as an accomplished act are to be distinguished from those which are a part of it and are forced or brought into utterance or existence by and in the evolution of the transaction itself, and which stand in immediate causal relation to.it. The former are hearsay and not competent as evidence; the latter are of the *res gestee*and are relevant and competent. In these eases the statements of observers of the criminal act have been held incompetent as not of the *res gestee:*Flynn v. State (43 Ark. 289) ; State v. Oliver (39 La. Ann. 470); State v. Bellard (50 La. Ann. 594) ; State v. Riley (42 La. Ann. 995); Ganaway v. Salt Lake Dramatic Assn. (17 Utah, 37) ; State v. Walker (78 Mo. 380); Stroud v. Commonwealth (14 Ky. Law Rep. 179). In these cases the statements of observers of the criminal act have been held competent as of the *res gestee:*Lander v. People (104 Ill. 248) ; State v. Kaiser (124 Mo. 651, 666) ; State v. Walker (78 Mo. 380) ; State v. Gabriel (88 Mo. 631) ; State v. McCourry (128 N. C. 594) ; State v. Biggerstaif (17 Mont. 510) ; State v. Duncan (116 Mo. 288) ; State v. Desroches (48 La. Ann. 428).

It is unnecessary to analyze or state the principles applied in those cases. The admissibility of the testimony under consideration is not determined by them. It does not appear that he who called out saw the shooting or knew that the man who ran over Houston street did the shooting, or that a person had been shot. The statement was not so interwoven or connected with the principal event or transaction as to be regarded as a *340part of the transaction itself, and was not admissible as of the *res gestee.*

*■*The testimony of the witness that the man running away was the defendant, and, in connection with other evidence, that the witness found the pistol near the defendant where stopped by the other officer was material, relevant and competent. The witness might properly and competently testify to the facts which explained and described his conduct and acts in acquiring such testimony. The hearing by him of the firing of the shots at the named point, the running and crossing of Thompson street, the obstruction by the wagon of his view towards the man running towards him, the passing over West Houston street, the turning about and running upon West Houston street were such facts. In case he when running toward that street had seen the running man approach and turn upon it and had followed him he could have so testified. In case as he was approaching that street the bystander had pointed in the direction of the fleeing man and he had followed the pointed direction he could have so testified. The words called out, in fact, were of the same quality and nature, as evidence, as the actual hearing of the fired shots, or the seeing of the running man, or the pointed direction in the supposed cases. It is true the character of the accused testimony admits the possibility of its use for an improper purpose and to the prejudice of the defendant. If it would naturally or within reasonable contemplation have been deemed by the jury as the equivalent of the statement that the man who did the shooting ran over Houston street, or as testimony identifying him who ran as a murderer, it manifestly was hearsay and incompetent. We are very certain that the jury could not so have deemed it. The witness Harson was the People’s first witness and the testimony was given at the commencement of his direct examination. Except through the opening address of the district attorney, which was brief, very general and contained no reference to the subject-matter of the testi*341mony, the jury had not information of the circumstances and conditions of the shooting. There was no connection between the bystander calling out and the shooting. There was no fact which directly or indirectly induced the thought to the jury that the bystander was identifying a murderer. The testimony could not naturally or reasonably have expressed more to the jury than would the testimony of the witness that he saw the running man and followed him.

The evidence being competent and admissible it is immaterial that an improper ground for receiving it was stated.

The judgment of conviction should be affirmed.

Hiscock, Oh. J., Ouddeback and Oardozo, JJ., concur; Chase and Pound, JJ., concur in result under section 542 of the Code of Criminal Procedure; Andrews, J., not sitting.

Judgment of conviction affirmed.