8 N.Y.S. 521 | N.Y. Sup. Ct. | 1890
Lead Opinion
The defendant, indicted for murder, was convicted of manslaughter in the first degree, for the killing of one James Logan. When the people rested, the following facts had been proved: The defendant, between 11 and 12 on the night of December 5th, went to the house of one Morey, an acquaintance, told him that some one had been shot at his (defendant’s) house, and asked Morey to go there with him. Defendant also said that he shot the man, and that he had shot his best friend. Defendant then went for Dr. Harvie, who lived near; told the doctor that there was a man at his place who was dying, and asked the doctor to go there with him. Defendant went away, but soon came back, and wanted the doctor to hurry, and then said he was afraid he had killed his best friend. The doctor and defendant went, and on their way they joined Morey. All of them proceeded to Downs’.house. They found Logan lying dead outside of the building, in the rear, and near the staircase which led to the second story. He had been killed by a bullet. Defendant was pale and sick, and asked the doctor what he had better do. The doctor advised him to notify the authorities. He said that was proper, and he would remain in the building till the doctor had done this. He remained there till the coroner came, an hour or two afterwards. To the coroner he said he had shot his best friend, and he did not know why. Logan was a strong, athletic man. At the time he was shot, he had on a heavy overcoat, a thick undercoat, vest, shirt, and pantaloons. The bullet passed through the overcoat, undercoat, vest, shirt, and suspenders. After defendant had been taken to the jail he said he did not know ° where the pistol was; that he probably threw it on the floor. It was after-wards found under the bureau. Defendant kept a saloon, and he and the deceased had been friendly and intimate. Deceased had often been in the saloon, and he was in the saloon that evening, about half past 10. Mrs. Downs was waiting on the bar. Ho one else was there at that time. On the overcoat near the bullet hole there were no marks of the burning of powder. The wound was an inch to the right of the right nipple. There were no other marks of violence.
The case seems to have been tried upon the theory that the prosecution had shown an intentional killing of Logan by the prisoner, and that it was for the prisoner to show some excuse or justification, as, for instance, defense of his wife’s chastity, while in fact the defendant’s testimony shows misadventure, and the prosecution showed nothing as to the circumstances surrounding the killing. It was to this that the defendant’s counsel had reference when he requested the court to charge that there is no legal implication from the fact of the
Another part of the charge is as follows: “Here has been a homicide. Here has been a human life taken. It becomes a serious question as to whether or not a man shall execute the law, or execute vengeance on his fellow. If he does it, he must do it at the peril of either being punished for it, or being able to excuse himself when called upon to answer to the wrong, within one of the excuses that is fixed and given in the law. If not, he must be found guilty of one or the other of the crimes which are imputed to him by reason of the homicide.” This was excepted to. It seems to us that the same error exists here. It is that of assuming that homicide is a crime, or that homicide is a private executing of the law, or of vengeance. It is for the people to prove, not only the killing, but also all other elements which make the crime, and not to assume that a homicide is a private executing of the law, or of vengeance, unless excuse is shown. People v. Willett, 36 Hun, 500; People v. Hill, 3 N. Y. Supp. 564. There are some cases cited by the prosecution, such as People v. Schryver, 42 N. Y. 9, where it is siad that, the homicide being proved, it is for the prisoner to satisfy the jury of his excuse or j ustification. But on looking at these cases it will be found that the proof of the homicide included proof prima facie oí a malicious killing. There are some expressions in text-books, also, to this effect, (4 Bl. Comm. 201;) but they are not in harmony with the doctrine of the Stokes Case, and of other, subsequent decisions. It is undoubtedly true that the jury were not bound to believe the defendant’s testimony, dr that of his wife; but the rejection of the whole or of part of that testimony does not supply the want of proof, or justify a mere guessing at the facts, without evidence. If the evidence of the defendant and of his wife is rejected, then there is no evidence as to the circumstances under which Logan lost his life. The learned justice took that view, because he charged that the jury could not find a fact to be established without evidence, against the sworn statement of the defendant and his wife, even though they were interested witnesses. But the only kind of manslaughter in the first degree of which defendant could be convicted is homicide in the heat of passion, by means of a dangerous weapon; yet, if the testimony of defendant and his wife are rejected, there is no evidence tending to show this. If accepted, there was misadventure. If part only is accepted, it is not justifiable to make out the rest of the elements of the crime from mere conjecture.
The jury, in finding defendant guilty of manslaughter in the first degree, must have repudiated the theory that defendant took Logan’s life in defense of his wife’s chastity, or in a temporary insanity caused by the sight of her unfaithfulness. • They must have found that he took Logan’s life in the heat of passion, without intent to kill. When we examine the evidence tending to sustain this degree of crime, we find it quite defective. There is no evidence of defendant’s heat of passion. If his own statement is true, then he
The defendant’s counsel urges that there was error in the charge as respects justifiable homicide, but the request of the defendant’s counsel omitted one important clause in the definition of “justifiable homicide.” Pen. Code, § 205. That is that it was committed “in lawful defense” of the wife. That means in defending her against the danger of a felony, or of great personal injury. Hothing in this case shows defense against an injury. The injury had been done before the homicide, and further attack on her was not to be apprehended. We are, however, of the opinion that there were errors in the charge prejudicial to defendant, as above pointed out; and we are. further of the opinion that the evidence does not sustain the conviction. On the law and on the facts thefe must be a new trial.
Concurrence Opinion
I concur in reversal because I think there was error in the ruling that the defendant must satisfy the jury that some one of his defenses was true. If the jury had a reasonable doubt as to the truth of any one of-them, the defendant was entitled to an acquittal, (Code Grim. Proc. § 389,) for in such case there would be a “reasonable doubt whether his guilt is satisfactorily shown.” But, upon the facts, if there were no errors of law, I should sustain the conviction; the evidence being ample to justify the finding that the defendant shot and killed Logan because he discovered him and his (defendant’s) wife in the act of adultery.
Concurrence Opinion
I concur in result, with the qualifications suggested by Justice Landon, not willing to say that on the merits the evidence does not sustain the conviction. J udgment reversed, and new trial granted on questions of law.