144 N.E. 487 | NY | 1924
On July 13, 1923, about five o'clock in the afternoon, Lee Jong, a Chinese laundryman, was killed while working in his laundry at Port Jefferson, Suffolk county.
Two men, the defendant Emieleta and one Rys, had formed a conspiracy to rob. Their plan was to throw red pepper into the eyes of their victim, and take his money while he was blinded. When they set out for Port Jefferson the pepper was their only weapon. Near the railroad station, however, they found an iron bolt, which Rys handed to the defendant, who kept it in his pocket. On their arrival at the laundry, Rys went in ahead. In the struggle that followed, Rys seized the Chinaman about the waist and threw pepper into his eyes while Emieleta beat him on the head with the bolt. The two then dragged the body into a drying room in the rear, where Emieleta picked up an iron pipe, and with it dealt more blows upon the head. He then left his victim with Rys, and returning to the front room, began to search for money. While so engaged, he heard the sound of other blows, and knew that his confederate was striking with the pipe. Rys then joined him, and they proceeded to search together. They pried open a trunk, and fled with about thirty-four dollars in money. Neighbors aroused by the noise of the affray entered the building a little later, and found Lee Jong senseless on the floor. He had seven or eight deep wounds on the scalp, a fracture *161 of the skull, and concussion and hemorrhage of the brain. The eyes were swollen, and could not be opened. The fracture of the skull covered a large surface, and disclosed shocking mutilation. The man was moribund when found, and died within a half an hour after his removal to the hospital.
These facts are established by the defendant's confession, which was proved by five witnesses, and was corroborated in many ways. The five witnesses might have been further confirmed by a written statement bearing the defendant's signature. This the trial judge excluded on the defendant's objection because the statement appeared to have been sworn to before a notary in New Jersey, and the official position of the notary was not authenticated by a county clerk's certificate. The ruling is obvious error, since a signing by the defendant himself was abundantly established, and the statement, if not an affidavit, did not cease for that reason to be effective as an admission. The error, though obvious, was to the prejudice of the People, and not to that of the defendant. The force of the confession was strengthened, so far as it implicated the defendant, by testimony tending to show that he had an old grudge against the Chinaman, and had threatened vengeance more than once. To one he had said when locked up for some other offense, that he was coming back to get the Chinaman, and to another that he would get him so that he would not squeal again. In opposition to all this incriminating evidence, the defendant offered nothing. He neither took the stand himself nor called any witnesses to speak for him. The facts are uncontested.
The case would involve little, if anything, for discussion in an opinion, were it not for the theory on which it was submitted to the jury. Upon the facts stated, a homicide had been committed by the defendant and his confederate in the execution of a felony, and the *162 defendant was guilty of murder in the first degree though there was no design to kill (Penal Law, § 1044). The difficulty is that the trial judge struck out this count of the indictment, and charged the jury that unless there was a deliberate and premeditated design to kill, the defendant was not guilty of murder in the first degree. His notion was that the felony of robbery, or of attempted robbery, was not committed, because the money ($34) was taken from a trunk and not from the person of the victim; that there was not a robbery but a larceny; and that the larceny, since it occurred in the day time and affected property of the value of less than $50, was petit larceny, a misdemeanor (Penal Law, §§ 1294, 1296, 1298, 1299). This view is manifestly erroneous, for the unlawful taking of property by force or violence or fear of injury is robbery and a felony whether the property be taken from the person of the victim or only in his presence (Penal Law, §§ 2120, 2121). No such theory of guilt, however, was put before the jury. We are, therefore, to consider whether the evidence sustains a finding of a premeditated design to kill.
The defendant struck his victim on the head with an iron bolt with which he had armed himself in advance. He followed this, after dragging the body to the rear room, with blows upon the head inflicted with an iron pipe. If the blows thus dealt by the defendant are the ones that caused death, a finding that he was the criminal agent might not unreasonably be supplemented by a finding of the existence in his mind of a premeditated design to kill. The nature of the weapon, the number and cruelty of the blows, and the previous expressions of hatred, all would tend to that conclusion (People v. Chiaro,
When two or more persons combine to kill in case killing is necessary to overcome resistance to the attainment of an end in view, the willful act of one in fulfillment of the common plan becomes the willful act of all. Incitement and execution are touched with equal guilt (Penal Law, § 2). We are not to confuse such cases with those where murder may be found though there was no design to kill in the mind of any of the participants, as where the case is tried upon the theory of homicide while engaged in the commission of a felony (People v. Van Norman,
The charge sufficiently presents the theory of concerted action. The greater part of it is indeed devoted to the exposition of the law in cases of homicide by one person rather than by several. At the end, however, the jury were instructed that if the two men, Rys and the defendant, "were both there and both acting in concert, they both, if any such acts were committed, they are both equally responsible." This must have meant, if they were acting in concert in the homicide and not merely in the robbery, for nowhere in the charge had robbery been mentioned. Very likely the charge upon this point as well as upon others might not unwisely have been developed with greater amplitude and clearness. The defendant's counsel, however, neither excepted to the instructions given nor asked for any others. "The court will not exercise its discretionary power to disregard the absence of objection unless on the whole case there is a reasonable basis for the fear that injustice has been done" (People v. Semione,
The judgment of conviction should be affirmed.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment of conviction affirmed. *165
