71 N.Y.S. 601 | N.Y. App. Div. | 1901
Lead Opinion
The appellant, in an altercation with one Charles Brower, on the 2d day of July, 1886, killed him and hid his body in an unused well. The crime was not discovered until the summer of 1900, and
By section 141 of the Code of Criminal Procedure it is provided that “ there is no limitation of time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.” By section 142 it is provided that “ an indictment for a felony, other than murder, must be found within five years after its commission, except where a less time is prescribed by statute.” And by section 444 it is provided that “upon.an indictment for a crime consisting of different degrees, the jury may find the ‘defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the crime.” The appellant was clearly prosecuted for murderhe was not indicted for manslaughter; and the conviction was for an inferior degree of the crime of homicide. Strictly speaking, and in the phraseology of section 444, the appellant has been found guilty of the crime charged against him, not in the degree charged, but in an inferior degree. No express provision of the statutory law has, therefore, been violated, but as the statute is to be liberally construed (People v. Lord, 12 Hun, 282), a strong argument is made that within the spirit of the limitation no conviction should be allowed for an inferior degree of an offense when the time for the prosecution of that degree had expired when the indictment was found charging the main offense.
The authorities are not harmonious. The only case upon the question in this State which has been found is that of People v. Dowling (1 N. Y. Crim. Rep. 529). It is a decision rendered at the Albany Oyer and Terminer in January, 1884, under the former statute (2 R. S. 726, § 37, as amd.. by Laws of 1873, chap. 630), providing that an indictment for murder might be found at any
To the like effect is Clark v. State of Georgia (12 Ga. 350). The Penal Code there provided that an indictment for an assault with intent to murder should be found within four years next after the commission of the offense, and for an assault and battery within two years. The court held that under a timely indictment for assault with intent to murder, the defendant could be convicted of assault and battery, although the statute had run against that charge at the time of the finding of the indictment. Warner, J., said (p. 352): “ In this case the indictment accusing the defendant with having committed the offence of an assault with intent to murder was found and filed, in the proper court, within four years from the time the offence was alleged to have been committed; but the defendant insists that inasmuch as the petit jury, on the traverse of the bill of indictment, found him guilty of an assault and battery only, and more than two yea/rs having elapsed from the time of the commission of the offence and the finding and filing the bill of indictment,
There are many cases decided in other States to the contrary. Among them are People v. Miller (12 Cal. 291); People v. Piceiti (124 id. 361); Riggs v. State of Mississippi (30 Miss. 635); White v. State (4 Tex. App. 488); People v. Burt (51 Mich. 199). (See, also, Bishop Stat. Crimes [3d ed.], § 261d.) In People v. Miller (supra) the reasoning by which the result was reached was admittedly in conflict with the decision in this State in People v. Van. Santvoord (9 Cow. 655), and the case, therefore, need not be regarded as authority here. In White v. State (supra) the decision apparently rested upon the wording of the statute of the State of Texas, and was not' regarded by the court as necessarily conflicting with Clark v. State of Georgia (supra). The eo'urt said in reference to the latter case (p. 491) : “ The Supreme Court held that the Statute of Limitations, as provided by the Penal' Code, applied to the offense for which defendant was i/ndicied, and not the minor offense of assault and battery, of which he was found guilty on the traverse of' that indictment.. The court based their decision solely upon the 35th section of the fourteenth division, of the Penal Code, which we have given. . The difference between that section of their Penal Code and article 185 of our Code of Procedure (Pase. Dig. art. 2652) will be readily seen by comparing them together.” In Riggs v. State of Mississippi (supra) the language of the statute was that “ no person- shall be prosecuted, tried or punished for any offence, wilful murder, &c., excepted, unless the indictment, presentment or information for the same be found or exhibited within one year next after the offence shall be done or committed.”
This brief reference to the conflicting decisions upon the subject is made because, as has been said,, it involves the only point argued upon the appeal; but we do not feel called upon to decide the question in this case inasmuch as it does not appear to have been properly raised in the court below. The evidence has not been returned in full, but only so much of it as the parties have considered necessary for the purposes of the point stated, together with an agreed statement of facts. The point could only be raised by proof upon the trial under the plea of not guilty (People v. Durrin, 2 N. Y. Crim. Rep. 328, and cases cited), and by some appropriate motion or request to charge. The agreed facts establish that the appellant was within the State and county during the fourteen years of successful concealment of his ■ crime, so that an indictment for manslaughter could have been found and prosecuted within the five years, but no request was made to the learned county judge to charge the jury that, therefore, a conviction could not be had for manslaughter. A motion was made on behalf of the appellant which appears in the case in this form : “ At the close of the whole case and before the judge’s charge, the defendant’s counsel moved that the prisoner be discha/rged upon the ground that he could not be convicted as charged, for the reason that owing to the lapse of time he could not be convicted of manslaughter.” This motion was denied, and very properly so. The appellant was not entitled to a discharge in any view. The indictment contained but a single charge, viz., that of murder in the second degree, and conceding that the appellant
The case further contains the following: “ After the finding of the verdict, the defendant’s counsel moved that on the indictment, on the evidence, the certificate of conviction, and upon the whole record of the case, the defendant he discharged ■ upon the ground that the Statute of Limitations was a bar to any prosecution for the crime of manslaughter.
“ And upon the same grounds in arrest of conviction and of the judgment to be entered thereon.”
This motion was properly denied. It is to be observed that no objection was made to the reception of the verdict and no request made that the jury be instructed even then that such a verdict was improper. The appellant having voluntarily taken advantage of the verdict, was certainly not entitled to be discharged on an arrest of judgment unless it appears that there was not sufficient evidence to convict him of any crime. (Code Grim. Proc. § 470.) But- the question that the offense of which the accused has. been convicted is barred by the Statute of Limitations, is not presented on a motion in arrest of judgment. By section 467 of the Code of Criminal Procedure it is provided that that motion may be founded on any of the defects in the indictment mentioned in section 331. Section 331 relates to but two defects: Fvrst. Want of jurisdiction in the court over the subject of the indictment, and, second, that the facts stated do not constitute a crime, and these objections, it is provided, may be taken at the trial, under the plea of not guilty and in arrest of judgment. In People v. Buddensieck (103 N. Y. 487) it was held that these two objections only are available upon a motion in arrest of judgment. If, however, on such motion all the grounds of demurrer mentioned in section 323 of the Code of Criminal Procedure are to be deemed included, the result will be the same. (People v. Menken, 36 Hun, 90-99.) Clearly the indictment in this case is not demurrable. It charges a crime committed within the jurisdiction and one which is never barred by time.
The judgment should be affirmed.
All concurred, Woodward and Sewell, JJ., however, expressing no opinion on the point discussed by Jenks, J.
Concurrence Opinion
I concur with Mr. Justice Hieschbebg- that the question presented was not raised at the trial. I think that if it had been raised the judgment must be reversed.
The defendant is convicted of manslaughter in the second degree. Section 142 of the Code of Criminal Procedure forbids an indictment for that felony for the reason that five years had elapsed since the crime was committed. As this crime must be prosecuted by indictment (Id. § 4) section 142 is a bar to a trial for the offense. But it is insisted that because the defendant was convicted of manslaughter on his trial of his indictment for murder in the second degree, his conviction is valid maugre the statute. Necessarily, this contention is founded upon the construction that the statute does not prohibit a conviction for manslaughter, but simply an indictment (and consequently a trial) for the specific crime of manslaughter. In other words, there cannot be direct accusation and trial for the crime because five years have elapsed, but this flight of time, which is deemed a proper limitation upon direct proceeding, should not be held a bar provided the conviction result upon the trial of an indictment (an accusation) for murder in the second degree. I can see no good reason for the distinction. Why should the State enact a statute of limitations upon direct jDrocedure, and thereby afford immunity for a crime, and yet permit punishment for the same crime by the indirect procedure of an accusation of a different crime? I can see no reason in the public policy that permits punishment for a crime when proven upon the trial of an indictment for a different crime, and yet prohibits punishment for that crime when sought by a direct indictment therefor. “ The letter killeth where the spirit giveth life.”
The fact that manslaughter is* a degree of homicide does not change the character of the offense, or afford any reason that it should be punished that does not obtain when we term it manslaughter. The fact that a grand jury upon the evidence presented deems that the act constitutes murder, so as to warrant such accusation, adds nothing to the gravity of the act which the verdict of the petit jury determines as manslaughter, of which crime alone the defendant is convicted. Whatever the trial be, whether for murder or for manslaughter, the verdict decides that the crime is manslaughter and
Statutes of limitation in the criminal law .are not subject to the strict .construction that obtains in the civil law. Hr. Wharton in his work on Criminal Pleading and Practice states the principle of construction as follows (§ 316): “We should at first observe that a mistake is sometimes made in applying to statutes of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. 'The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to .the other; there is, therefore, no grantor against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its right to prosecute, and declaring the offence to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and. grudgingly applied, but an amnesty declaring that after a certain time oblivion shall be east over the offence;. that the offender shall be at liberty to return to his country and resume his immuni- ■ ties as a citizen ; and that from henceforth he may -cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation áre to be liberally construed in'favor, of the defendant, not only because such liberality of construction.belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition, and notification by
Mr. Bishop, in his work on Statutory Crimes (3d ed. § 261d), says: “ There are decisions not requiring special consideration, as to what offenses are within the varying terms of our limitations statutes. Now — Offenses within one another.— In those cases in which a conviction for a minor offense may be had on an indictment for a major, the same as in any other, the particular one for which the verdict is found must not be barred by the statute.” (People v. Picetti, 124 Cal. 361; Riggs v. State of Mississippi, 30 Miss. 635 ; White v. State, 4 Tex. App. 488, citing State v. Freeman, 17 La. Ann. 69; Turley v. State, 3 Heisk. 11; Nelson v. State of Florida, 17 Fla. 195; Commonwealth v. Ruffner, 28 Penn. St. 259.)
I think that' as upon any construction of this statute it is at least a bar to trial, conviction and punishment upon an indictment for the specific felony, in that it prohibits indictment, which is the sole procedure authorized (Code Grim. Proc. § 4), the fact that in any of the cases cited the statute considered prohibited punishment does not affect the force of its authority upon the general principle. I think that the decision of the Oyer and Terminer in People v. Dowling (1 N. Y. Crim. Rep. 530) should not be followed. The learned justice who wrote, after stating that the position taken by the prisoners’ counsel “ may seem to be within the equity of the statute,” thought that he was bound to follow the strict language thereof. He pointed out that with the statute stood the other statute that upon an indictment for any offense consisting of
Judgment of conviction affirmed.
