81 N.Y. 360 | NY | 1880
The issue in this case turned upon the weight of evidence, which was conflicting; and, although the plaintiff in error was convicted of manslaughter in the third degree only, it is, I think, impossible to say that this result was not, in some measure, brought about by the charge of the learned trial judge, "that the jury, if they believed the evidence offered in behalf of the people to be true, would be justified in finding the prisoner guilty of murder in the second degree." The learned judge properly defined this offense, saying, it "is the *362 unlawful killing of a human being intentionally, but without deliberation and premeditation."
Whether this intent existed could not be a question of law. It was necessarily to be determined by the jury, from all the facts and circumstances of the case, and if not found, the prisoner could not properly be convicted. Concerning their duty in this respect, the court said nothing. The charge, as given, may well have been understood by the jury as involving an opinion of the court upon this as well as the other elements of the crime. It was at least likely to mislead and prejudice them. Instead of informing the jury what must be established to make out the offense, and leaving it for them to determine whether it had or not been done, the judge says, "enough has been proven, if you believe the witnesses on the part of the people." Their attention is thus directed to evidence of inculpation merely; its weight is stated to them as sufficient in law to sustain a conviction for the graver offense; so that the question of fact to which their minds are turned relates to the credibility of certain witnesses, and not the weight or measure of their testimony, or the existence of the intent. How far that testimony was modified or neutralized, by that produced by the defendant, or what inferences should be drawn from any of it, is virtually excluded from their inquiry. If you believe certain witnesses, says the court, the verdict follows. This was overstepping the province of the judge. Upon the record it cannot be said that such a question was not in the case; but if it was, it was one for the jury and should have been fairly left to them. It is true that the question was not absolutely taken from the jury by the court; this was beyond its power (People v. Howell, 5 Hun, 620; affirmed,
I have examined the other exceptions relied upon by the learned counsel for the plaintiff in error, and conclude that they are not well taken, but on account of the error above discussed, the conviction and judgment should be reversed, and a new trial granted.
All concur, except FOLGER, Ch. J., not voting.
Judgment reversed.