11 N.Y. Crim. 194 | New York Court of Sessions | 1895
Gentlemen of the jury: Counsel for the defense, and the. people have unthinkingly anticipated a ’condition of the case that has not arisen. There is no such question before the court, though I have been enlightened by-argument on both sides. The real question here presented is whether or no there is sufficient testimony in this case to go before the jury upon the point of issue raised by the district attorney, to wit, the crime of manslaughter in the second degree; and that is the question that I have to determine, and that is the only issue that has been presented to this jury, and that is the only issue upon which testimony has been taken. That was the challenge of the prosecution, and the defense accepted that challenge, and upon the issue growing out of that challenge all the testimony that has been taken has been submitted. Now, what does the defense do, the prosecution having closed its case?
Mr. House: We ask your honor to advise the jury to acquit, upon the ground that there is no- evidence here to show that these defendants, or any of them, have committed the crime of manslaughter in the second degree.
The Court: What does the district attorney say to that motion?
The Court: No; that will do. Gentlemen of the jury, upon the motion made by the defendant, and umeontested by the prosecution, but conceded by the prosecution, that there is no testimony before you to warrant the submission to you of the question of the guilt or innocence of these defendants of the crime of manslaughter in the second degree, I decide that that motion must be granted, because there is no sufficient testimony before you to warrant the submission to you of the question of the guilt or innocence of the defendants of the crime of manslaughter in the second degree. What does the district attorney do? Is there any reason why these defendants should not be discharged?
Mr. Oliver: The district attorney maintains now, as before, that, although the court has ruled that there is no evidence upon which the charge of manslaughter in the second degree might be considered by the jury, still the people have proof that an assault has been committed upon this man; and on the evidence before the jury now of that assault the district attorney maintains that the jury ought to be allowed and directed to take into consideration such testimony, as to whether an assault has been 'Committed or not.
The Court: What has the defense to say to the motion, without argument pro forma.
Mr. Levy: I ask that the verdict be first rendered acquitting the defendants, and then I say that the lesser crime is merged in the greater; and, by the acquittal of the defendants of manslaughter in the second degree, I contend that the entire matter is disposed of.
The Court: Now, I will decide the motion made by the district attorney. Gentlemen, as far as I am informed by the very interesting argument of counsel on either side, there has been no authority cited directly in point which I could follow as a precedent in this state; and I am therefore compelled to decide
I consider that one object, if not the principal object, of the criminal laws of this state was to reach definitiveness and certainty of procedure, and to abolish, as far as possible, the somewhat cumbersome forms of procedure that had grown up under the common law;, and I take it, therefore, that section 278 was meant directly to accomplish that object; that is, that the indictment should charge but one crime, and in but one form; and the purpose, of that, as may be appreciated by all students of criminal law and its history, was to protect defendants from ■being brought into court upon one indictment, and, practically speaking, being tried upon another; the purpose being to apprise the defendant of the crime charged against him, to give him an opportunity to prepare his defense to meet that crime, and no other; and that the old custom, which had brought with it, in many cases, so much injustice, where the defendant may have been brought into court under one indictment, and practically speaking, convicted of a crime not mentioned or em
Does murder consist of different degrees? If it does consist of different degrees, it is necessarily excluded from the operations of section 445. Homicide, of course, is murder, and it includes all the degrees of murder. Homicide is defined as the killing of one human being by the act, procurement, or omission of another. Murder cannot exist without being homicide, because its definition is the killing of one human being by another. Section 180, Pen. Code, defines homicide as either— First, murder; second, manslaughter; third, excusable homicide; and, fourth, justifiable homicide. There are four primary degrees embraced in the definition of homicide,—murder, manslaughter, and excusable or. justifiable homicide. Other sections subdivide murder into the first and second degrees of murder, and those degrees must be included in the degree of murder. Other sections subdivide manslaughter into two degrees,
Verdict, “Not guilty.”
NOTE ON “CONVICTION FOR LESS DEGREE OF CRIME.”
Jury, though they may find the defendant guilty of a less degree of crime than is charged in the indictment, cannot find him guilty of a less degree than is shown by the evidence. People v. Blakeman, 9 N. Y. Cr. 533; 68 S. R. 140.
Under an indictment charging only the higher degree of a crime, the defendant may be convicted of any less degree of it. People ex rel. Young v. Stout, 81 Hun, 336; 63 S. R. 154; 30 Supp. 898; aff’d, 144 N. Y. 699; 70 S. R. 866; 39 N. E. 858.
Conviction of attempt to commit robbery in second degree can be had under indictment for robbery in first degree. People v. O’Hara, 21 S. R. 260.