People v. . DinserPeople v. . Dinser
Fоr the purposes of this appeal we need not dwell at length upon the story of the tragedy which had its sequel in the indictment of the defendant for the crime of murder in the first degree, and his conviction of murder in the second degree. Upon defendant’s appeal from the judgment of conviction the lеarned Appellate Division decided that he was entitled to a new trial and we concur in that conclusion, but upon different grounds. The order reversing thе judgment of *310 conviction recites that it is based wholly upon questions of law; that the facts have been examined and no error found therein. The opiniоn of the learned court clearly indicates, however, that the reversal proceeded upon the theory that the evidence of the prosecution failed to establish one of the essential elements of the crime of murder in the second degree, to wit, the intent to kill. In that reasoning wе do not concur. We think, on the contrary, that the evidence was strong enough to justify the submission of the question of intent to the jury as an issue of fact for their determination. That question was very clearly and fairly discussed by the learned trial court, and if it were not for one grave error in an otherwise admirable charge, we should be disposed to disagree with the learned Appellate Division and to uphold the judgment of conviction. The barest outline of a fеw salient facts will serve as an introduction to the question upon which we think the order of the Appellate Division must be sustained.
-The defendant, for some timе prior to the commission of the homicide charged against him, had been a widower with three children of tender years who needed a mother’s cаre. He was a plumber whose comparatively scant earnings compelled him to live in the typical Hew York tenement, where these children were left during working' hours to make shift for themselves, and this condition, having been brought to the attention of the agent of the “ Gerry ” society, led to the suggestion that the defendant must provide himself with a housekeeper. With this in view he sought counsel of a woman of his acquaintance who arranged a meeting between the defendant and one Agnes Renaude, a young unmarried woman who had a child about two years of age. The result of this interview was an agreement, аt once consummated, that the defendant and Renaude would live together. The woman’s story was to the effect that this arrangement was entered into upon the defendant’s definite promise to marry her in the following week; the defendant *311 testified that marriage had been discussed but never actually agreed upon. Whatever the truth as to that may be they were not married but lived together apparently as husband and wife. This continued for several months, during which thеir relations, so far as disclosed by the record, were apparently peaceable if not happy. Then the little victim of the homicide, the illegitimate child of Renaude, was brought into the family. The evidence clearly permits the inference that this poor unfortunate aroused in the defеndant a spirit of antagonism which was evinced by harshness of treatment and not infrequent acts of physical violence towards her. From that time forth the dеfendant and Renaude indulged in occasional quarrels in which, ac- . cording to the testimony of Renaude and her immediate neighbor’s, the defendant stigmatized the child as a “ brat ” and “ bastard,” and thus matters continued until Sunday, September 3rd, 1905. The defendant’s movements during the early part of that day are of no presеnt importance. The day had apparently been uneventful until evening when Renaude and the defendant went out to call upon the person at whоse house they had first met. After thus passing the larger part of the evening' they started for home, arriving there shortly before midnight. According to Renaude’s story the defendant asked her to go down stairs and get a pint of beer for him, and when she demurred because she was afraid, he struck her upon the head with one оf his shoes which he had taken off. Thereupon he went out and, returning in about half an hour, asked Renaude, “ Where is that brat of yours ? ” Having been told that she was in the bed with his three children, he took her from the bed, brought her into the living-room and threw her upon the floor. The mother attempted to restrain him, but he struck the child with his fist а number of times and continued to strike her until she was torn from him by the mother who then fled into the kitchen. The defendant followed her, striking her with an iron plumber’s tool, and аgain attacked the child, hitting her again at *312 least three times with his fist. Without going unnecessarily into the harrowing details of the distracted mother’s story it may be simply added that she says that at this juncture it was discovered that the child was dead, and that the defendant at once suggested the necessity of getting rid of the body.
The dеfendant’s story is essentially different and, if true, is calculated to acquit him of intentional homicide, -although he admits that he administered a blow which threw the child against a desk and caused her accidental death. That is of no moment now for we are at present concerned with only so much of the story told for the prosecution as relates to the error in the charge of the trial court to which we have alluded. As we have already suggested, the еvidence which bore upon the circumstances surrounding and preceding the homicide raised an issue of fact upon the question whether the defеndant attacked the child of tender years with such an amount and kind of violence as to support the inference of murderous intent, or whether the trаgic result was due to a single blow administered in the heat of passion without ulterior design. As bearing upon this question, defendant’s counsel asked the trial court to charge “ that it is proper for the jury to consider, in connection with the guilt or innocence of the defendant in this ease, what motive he may have had, if any, to kill the deceased.” In response to this request the court decline to charge upon that subject, except as he had previоusly charged, and defendant’s counsel excepted. Then the court - added: “Motive forms no part of the crime of murder. "Where you believe, gentlemen of the jury, from the evidence, that the defendant did the act, and did it beyond a reasonable doubt, motive forms no part of the defense.” This latter charge, although entirely correct as an abstract proposition, did not cover the request above quoted; and when we refer to the previous portions of the charge upon the subject of motive, we find that the jury had not been instructed that motive may be considered upon the question оf *313 intent. It is true that motive is not an essential ingredient of the crimes of murder in the first and second degrees. Murder in either of these degrees may be committed without a motive, but never without intent. And, as bearing upon the question of intent, motive or absence of motive may present considerations of the utmost importancе. Murderous intent may be inferred from motive clearly established, and, conversely, absence of motive, even if not conclusive, may be considered as pertinent to the question of intent where that is in issue. We think the trial cours should have charged as requested upon the subject of motive, and for that rеason we affirm the order of the Appellate Division reversing the judgment of conviction and granting a new trial.
Cullen, Ch. J., Gray, Vann, Willard Bartlett and Chase, JJ., concur; Haight, J., dissents.
Order affirmed.