Court of Appeals of the State of New York

People v. Bonifacio
190 N.Y. 150 (N.Y. 1907) • 82 N.E. 1098
Decided Dec 10, 1907

Submitted November 25, 1907 whether the shooting was intentional, or in self
defense, or accidental, as the result of a struggle
151 Decided December 10, 1907 *151
between the two men, formed the issue at the trial.
George M. Abbot and William E. Woollard for The defendant was one of a gang of laborers,
appellant. employed upon some highway work, near the city
of Amsterdam, in this state, and the deceased kept
John S. Maxwell, District Attorney ( Fox Sponable
a store nearby. An altercation arose between them
of counsel), for respondent.
concerning a petty indebtedness, owing by the
defendant. The testimony for the prosecution
GRAY, J.
tended to establish that the deceased, on the day of
The defendant was charged in the indictment with the homicide, was insisting upon an immediate
the crime of murder in the first degree, for having payment and that the defendant should then leave
killed Ralph Di Scibio, by intentionally and the work. Upon the latter saying that he had no
deliberately shooting him with a pistol, on August money, the deceased threatened him with personal
7th, 1904. His trial resulted in a verdict of murder violence and came towards him. The defendant
in the second degree. The Appellate Division, by drew a revolver and cried out to "step back," or he
the unanimous vote of the justices, has affirmed would shoot. The deceased continued towards him
the judgment of conviction and, also, an order, and, when within a few feet of him, was shot. The
which denied a motion for a new trial, made upon defendant then ran away and the deceased pursued
the ground of newly-discovered evidence. The him for a short distance, when he fell to the
defendant has, further, appealed to this court; but, ground and expired. The defendant was caught
152 in so far as his appeal includes *152 the affirmance some miles away from the scene. The evidence for
of the order denying a new trial, the right to a the defendant did not, substantially, differ as to the
review, in that respect, ceased at the Appellate altercation between the two; but it tended to show
Division. It was within the discretion of the court that, when the deceased came forward with
below whether to grant the application, or not, and threats, he seized hold of the defendant and that,
with the exercise of that discretion this court will the latter then drawing his pistol, it went off in the
not interfere. Upon the appeal from the affirmance scuffle, or as the result of the deceased's pulling at
of the judgment of conviction, all questions of it. The defendant, in giving his account of the
fact, or as to the sufficiency of the evidence, must killing, denied any intention in drawing his pistol
be regarded as conclusively settled and there is but 153 upon the deceased, *153 other than that of
one question of any importance, which presents frightening him. The trial judge, correctly enough,
itself for our consideration, and that was raised by charged the jurors upon the law, defining and
an exception to a ruling upon a request to charge. explaining to them the degrees of murder and of
That the deceased was killed by a shot from a manslaughter, and the rule of presumption and he,
pistol drawn by the defendant is not disputed; but fairly, stated to them the facts of the case. Upon

1
 People v. Bonifacio 190 N.Y. 150 (N.Y. 1907)

the conclusion of his charge, he was requested by necessary in all cases; but, in cases depending
the defendant to charge, further, "that unless the wholly upon circumstantial evidence, it is proper
evidence on both sides as a whole excludes every to emphasize its application by coupling it with a
hypothesis except that of guilt, the defendant may statement that the circumstances must exclude
be acquitted." He answered "I decline to charge in beyond a reasonable doubt every hypothesis
that way. You leave out the word reasonable." This except that of guilt. In Starkie's work on Evidence,
ruling presents the one question, which justifies it is said that "juries should convict, when they can
some consideration by this court of this case. The do so safely and conscientiously, upon
jurors had been instructed, in the course of the circumstantial evidence, which excludes all
main charge, that they were to determine whether reasonable doubt," (720), and the rule is laid down
the defendant had intended to kill the deceased, by the same author that the circumstances should,
whether there was any motive shown, and that "in to a moral certainty, exclude every hypothesis, but
order to convict the defendant, the evidence must the one proposed to be proved. (575.) The rule is
be sufficient to satisfy them beyond a reasonable referred to in the opinion of this court in Ruloff v.
doubt that he was guilty." Just before the request People, ( 18 N.Y. 179), in the discussion upon the
in question was made, the trial judge, also, at the proof in cases, where there is no direct proof of
defendant's request, had instructed the jurors that the death, or of the act of the defendant alleged to
"the burden of proof rests upon the prosecution at have caused death.
all stages of the trial and never shifts to the
The defendant's request should not have been
defendant" and that "they must be satisfied on
allowed for two reasons and the qualified refusal
every proposition beyond a reasonable doubt."
of the trial judge, in my opinion, was rather
There can be no hesitation in concluding that the
favorable to the defendant than otherwise, even if
jurors had been carefully and correctly instructed
incorrect; for it applied a too rigid rule of law to
upon a proposition of great importance to the
the People's case. The request was, in itself,
defendant's right, as to the burden and quantum of
technically improper; inasmuch as it called for an
proof.
absolute certainty in the exclusion of any
Differing from the rule in civil cases, which hypothesis except that of guilt. Such a rule would
demands that the case for either party shall be make convictions upon circumstantial evidence
proved by a preponderance of evidence, the rule in impracticable. The law deals rather in
criminal cases requires that the People shall considerations of a moral nature and does not
establish their case against a defendant beyond a demand absolute certainty; it demands that the
reasonable doubt. Proof "beyond a reasonable evidence shall establish the truth of the fact
doubt" has been well defined to be that which charged to a reasonable and moral certainty; that is
amounts to a moral certainty, as distinguished to say, a certainty, which results from the reason
from an absolute certainty. ( Commonwealth v. being convinced and from the judgment being
Costley, 118 Mass. 1.) Doubt is a state of mind, in satisfied. If, after a careful and impartial
which a conclusion cannot be reached upon the consideration and comparison of the evidence, the
question before it. If it is not due to mental jurors can say that they entertain no reasonable
inability to co-ordinate facts in evidence, it must doubt of the defendant's guilt and, therefore, are
154 arise from the absence of some material fact, *154 convinced of it, the requirements of the law will
or because such a fact has not been sufficiently be satisfied. (See Commonwealth v. Webster, 5
established by the evidence and, therefore, the Cush. 302, 320; Commonwealth v. Costley, supra;
foundations for a belief are insufficient. The 155 *155 Hopt v. Utah, 120 U.S. 430, 439.) Whether
application of the rule of reasonable doubt is the expression used is "beyond a reasonable

2
 People v. Bonifacio 190 N.Y. 150 (N.Y. 1907)

doubt," or "to a moral certainty," is immaterial; for the testimony of eye-witnesses, and the guilt of the
they are synonymous and each, simply, means that defendant depended upon the credence which the
the proof must be such as would satisfy the jurors gave to it. There might be doubt as to his
judgment and consciences of the jurors that the intention; but that would be because of his
crime charged had been committed by the statements and not from the absence of some
defendant and that no other reasonable conclusion material fact. Attempts at definition are more apt
was possible. ( Hopt v. Utah, supra.) In People v. to be confusing than helpful, when the term
Smith, (162 N.Y. at p. 529), a request to charge attempted to be defined is, in itself, neither
that "the evidence must be so strong as to remove abstrusely expressed, nor, being expressed in
every other hypothesis than that of the defendant's ordinary language, is difficult of understanding.
guilt" was held to be improper; for the reason that The purport of the request we are considering was,
"the rule is that the evidence must, to a moral plainly enough, an attempt to have defined further,
certainty, or beyond a reasonable doubt, exclude, what the trial judge had already sufficiently
or remove, every other hypothesis than that of the explained, the "reasonable doubt," which was to
defendant's guilt." Whether, within the opinion in be the protection of the accused against a hasty, an
People v. Smith, the qualification by the trial judge arbitrary, or a speculative conclusion upon the
of the request, by making it a reasonable facts.
hypothesis, which the evidence should exclude,
The further reason for denying the request, beyond
would be, in a proper case, reversible error, I
its technical inaccuracy, is this that it is one more
doubt. In Hopt v. Utah, ( supra), the United States
properly made in a case wholly depending upon
Supreme Court approved an instruction that the
circumstantial evidence and was quite
jurors may reconcile the evidence upon any
inappropriate to the facts proved. In People v.
reasonable hypothesis and in Commonwealth v.
Bennett, ( 49 N.Y. 137), a case of circumstantial
Costley, ( supra), it was said, that "proof `beyond
evidence, Chief Judge CHURCH laid down the
a reasonable doubt' is not beyond all possible and
rule that "in determining a question of fact from
imaginary doubt, but such proof as precludes
circumstantial evidence, there are two general
every reasonable hypothesis except that which it
rules to be observed: 1. The hypothesis of
tends to support." The distinction made by Judge
delinquency, or guilt, should flow naturally from
LANDON, in his opinion in People v. Smith,
the facts proved and be consistent with them all. 2.
between mere "hypothesis" and "reasonable
The evidence must be such as to exclude to a
hypothesis" upon the evidence, is somewhat subtle
moral certainty every hypothesis but that of his
and I may not quite apprehend it; but it is not
guilt of the offense imputed to him." In People v.
material to this case. That case was one where the
Fitzgerald, ( 156 N.Y. 253), also, a case of
fact charged was arson committed by the
circumstantial evidence, Judge O'BRIEN laid
defendant and was one wholly of circumstantial
down the same rule, using Chief Judge
evidence; while this is not. In the one case, there
CHURCH'S language. In People v. Smith, (
should be no possibility of confusion arising in the
supra), as already mentioned, the question of the
jurors' minds as to the right of the defendant to a
propriety of the request was considered and denied
verdict, that is only arrived at when every
in a case wholly depending upon circumstantial
reasonable doubt as to the fact charged has been
evidence. Now, in this case, the death of the
removed by the evidence of circumstances, which,
deceased was established by direct evidence. It
when taken together, leave the hypothesis, or
was proved to be the result of a shot fired from a
supposition, of guilt the sole one to be reasonably
pistol belonging to, and drawn by, the defendant
156 drawn *156 therefrom. In this case, the fact
and this is not disputed. Whether the wound was
charged was proved by direct evidence, through

3
 People v. Bonifacio 190 N.Y. 150 (N.Y. 1907)

157 inflicted intentionally by *157 the defendant, or by immediately after the deceased was shot. While,
accident in his struggle with the deceased, and therefore, the defendant was entitled to have the
whether, if by his hand, it was in self-defense, jurors instructed that they must extend to him the
were questions to be answered upon the testimony benefit of every reasonable doubt upon the
given of the occurrence by eye-witnesses and by evidence, he was not entitled to an instruction that
the defendant. If the jurors believed the witnesses they might acquit "unless the evidence on both
for the prosecution, the defendant warned the sides as a whole excluded every hypothesis except
deceased to keep away and, when he continued to that of guilt." Acquittal was to depend upon the
approach, without seeking to avoid a conflict by credence they gave to the defendant's version of
going away, drew a pistol and shot him. If they the occurrence; while the degree of his guilt would
believed the statements of the defendant and of his depend upon the jurors' view of the surrounding
witnesses, he did not shoot the deceased; but the circumstances, in connection with his statements.
pistol, though drawn by him, was pulled out of his
I advise an affirmance of the judgment.
hand and was discharged in a struggle with the
deceased. Thus, the determination of the issue by CULLEN, Ch. J., O'BRIEN, VANN, WERNER,
the jury, necessarily, turned upon their belief in the WILLARD BARTLETT and CHASE, JJ., concur.
several statements of the occurrence. There were
158 Judgment of conviction affirmed. *158
circumstances to be considered, obviously;
because there are always such in every case. But
the fact of the killing was not proved inferentially
by circumstances; the circumstances attending the
killing were proved and were helpful in coloring
the principal fact; such as, for instances, the
quarrel about defendant's indebtedness; the threats
of the deceased and his insisting upon the
defendant leaving the work upon which he was
employed, and the defendant's running away