102 N.Y.S. 93 | N.Y. App. Div. | 1907
The defendant was indicted for the crime of murder in the first degree, the indictment charging-that on the 23d day of September, 1896, he willfully and feloniously killed one Rose A. Redgate. There have been two trials. The first resulted in a conviction of the crime charged in the indictment, but on appeal the judgment was reversed and a new trial ordered, upon the ground that error was committed in admitting certain evidence against the defendant’s objection. . (People v. Koerner, 154 N. Y. 355.) The second resulted in a conviction of murder in the second degree and the defendant again appeals, challenging the' validity of his conviction upon various grounds, but principally that errors were committed.
The fact that Pose A. Bedgate, at the time stated in the indictment. was shot with a pistol in the hands of the defendant and, as a result of the injuries inflicted, died within a short time thereafter, is not disputed by' the defendant. He, however, does claim that the evidence adduced at the trial fairlyéstablished that the shooting was accidentalthat his purpose was to commit suicide, and in endeavoring to do so he placed the pistol against his temple, when, to prevent his carrying-out his intent, the decedent grasped the pistol and it was accidentally discharged. He also claims that when the shooting took place he was laboring under such a defect of reason as not to know the nature or quality of his act or that it was wrong.
The evidence on the part of the People tended to establish that on the day the shooting took place the defendant went to the decedent’s place of business, 27 Pine street; waited until she was through with her work, between five and six o’clock in the afternoon, and then went with her to Fourteenth street, between-Sixth and Seventh avenues; that he there shot her three times, and two of the shots were fatal; that he had been acquainted with the decedent for some time and their relations were of an affectionate character; that at one time they were engaged to be married, but that the engagement at the time of the shooting had been broken by reason of the opposition of her father to the marriage ; that by-reason of this opposition the defendant had told the father if he did not marry the decedent nobody else should; and that the shooting was the deliberate, willful and intentional act of the defendant.
There was some evidence offered by the defendant to the effect that the pistol was discharged' in decedent’s attempt to wrest it from his hands, but when all this evidence is considered I do not think it established or would have justified a finding that the shoot- • ing was accidental. The number of shots, the location of the wound, the position in which the deceased fell, and other facts surrounding the shooting, indicate to the contrary and show that the pistol was intentionally discharged by the defendant.
At the conclusion of the trial the evidence on the part of the People tended to establish the defendant’s guilt of the crime charged in the indictment.and required the submission of that question to the jury, and had it found a verdict of murder in the first degree, would have been sufficient to sustain the same, while that offered by the defendant bearing on his mental condition at the time the shooting occurred was such as to possibly justify the jury in finding that the defendant did not intentionally shoot the decedent. There being a sharp conflict in the evidence, therefore, as to the mental condition of the defendant at the time the shots were fired, requires an examination of the various errors alleged, for the purpose of ascertaining whether or not substantial justice had been done. '
First, it is claimed that the defendant’s constitutional and statutory rights were invaded, in that he was denied the right of counsel to fully participate in the trial. The record will be searched in vain to find any justification for the claim. After the jury had been out a long time and had returned and requested' the court to inform them whether “One juror (can.) legally and conscientiously,. if he believes in one degree, for the purpose of agreeing with the other
Next it is- claimed the jury was coerced into bringing in a verdict. The case was submitted to the jury át four p. m., March 9, -1898. They returned, with their verdict at one-forty a.-m., March twelfth — having deliberated a little over fifty-seven horirs. The trial had been a long one, and while the jury had been out a considerable time it must be borne in mind that they had not in any way intimated, until just a few hours before they finally rendered their verdict, that they could not agree. There is absolutely nothing to" : indicate that the court coerced the jury, into finding their verdict.
It is also claimed that the court erred in striking out of its own motion and instructing the jury to disregard a portion of the testimony given by the defendant’s witness Caroe and proceedings in connection therewith. While the witness Caroe was testifying the learned recorder discovered, or supposed he did, some one in the court room was indicating to the witness the manner in which he should answer the questions put to him, and he thereupon directed the district attorney to make an investigation of the matter by asking the witness certain questions. It undoubtedly would have been much better practice had the recorder directed the jury to retire while such questions were asked, and I am of the opinion he should have done so lest the jury might possibly be unduly influenced by .the recorder’s action when they came to consider and weigh the testimony of the witness. But this was a matter resting largely in the discretion of the recorder, he taking into consideration what had occurred and tile atmosphere of the trial. However, it seems to nie clear from what took place the following day when the testimony was stricken out and the jury instructed, in language so plain they could not fail to. understand it, that they were to disregard what had happened the day preceding so far as the incident in question was concerned,that the defendant could not have been injured and the action of the recorder does not constitute reversible error. (People v. Smith, 180 N. Y. 125; People v. Buchanan, 145 id. 1; People v. Hayes, 140 id. 484.)
Error is also claimed in the court’s permitting the People’s witness, Dr. Bayard, to testify as to what symptoms are manifested by a person shamming unconsciousness. The testimony given by this
It is also claimed that error was committed by permitting two lay witnesses, Kenneally and Osborne, to testify as to the rationality of tbe defendant. Kenneally was connected with a newspaper published in the city of Hew York and to whom the defendant a short time prior to the homicide had submitted a poem for publica-' tion, entitled “ Plzen Pete.” He had frequently seen the defendant, but while he could not state precisely the time when the article was submitted, lie did remember the fact that the defendant submitted'it to him at the same time, stating that he wrote it. Under such circumstances, it was competent for the. witness to state whether the acts and conversation of the defendant impressed him 'as being rational .or irrational. As to. the witness Osborne, lie was one of the official stenographers of the Court of General Sessions. The defendant some time prior to the homicide had beén instrumental in instituting proceedings to punish certain persons for vioT lations of the Excise Law, and during the course of which his téstimony was taken by the witness Osborne acting in his official capacity. While he testified that he had no personal acquaintance
It is further claimed that the court erred in permitting Dr. Newton to express his opinion as to the responsibility of the defendant. An examination of the record shows that Dr. Newton first testified to his own examination, as. a result of which he pronounced the defendant sane. A hypothetical question was then put to him, in answer to which he again pronounced the defendant sane. He was then asked whether lie had heard all the testimony given at the trial. This was objected to and the objection overruled and'-he was permitted to state that Iievhad. He was not then asked to give an opinion based upon the testimony which he had heard, but it was whether,, assuming that testimony be true, as stated in the hypothetical question as well as .his own examination of the defendant, he would pronounce him sane or insane. The objection to the question, and the exception taken to the adverse ruling thereto, as to whether he had heard all the testimony given at the trial, is unavailing. A similar question was asked in People v. Osmond, (138 N. Y. 80) and was held harmless. Then came the following question: “ Q. Now, assuming that testimony to be true, as I have stated in the hypothetical question, and assuming also your own examinations of this defendant, made in the Tombs, in your opinion was he sane or insane ? I mean the explanation as you. have detailed them here to-day.” The question was objected to, the objection overruled, an exception taken, and the witness answered, “ I believe he is sane.” It is clear the witness, in answering the question, did not base his answer upon the truth of testimony given during the trial, but only upon the truth of testimony as stated in the hypothetical question ; that is, he assumed that the facts stated-in the hypothetical question were true. This seems necessarily to follow when in answer to a question put to him on cross-examination he stated : “ In answering this hypothetical question put to me by Mr. Osborne, my answer is based upon the facts as he stated
Error is also alleged to have been committed in permitting Doctors Hewton and Hamilton to testify, against objection and exception, -to the several examinations of the defendant, made by them intermediate the homicide and the trial. Ho error was committed in tliis respect. The defendant did not dispute the fact that the deceased came to her death from a bullet wound received from a pistol which he held. What he claimed was that the shooting was accidental, or that he was laboring under such a defect of reason as not. to know the nature and quality of the act he was doing. Under such circumstances his mental condition prior, as well as subsequent to the' homicide and at the time of the trial was a proper subject for consideration by the jury, to the end that they might correctly determine whether or not his claim were true. (People v. Hoch, 150 N. Y. 291.)
It is also claimed the court erred in permitting the witnesses Shed-lock and Dr. Ward to testify as to the rationality of the defendant at a time subsequent to the homicide. Tlie.answer to this alleged error is found in the one already discussed as to Doctors Hewton and Hamilton, and is fully covered by the opinion in People v. Hoch (supra). So far . as the testimony of Dr. Ward, is concerned, the appellant seems to complain because the court of its own motion struck it out. It would seem from the opinion of the Court of' Appeals that the same thing occurred on the. former trial; that Dr. Ward’s testimony was first admitted and" then struck out, and it was held there was no error. (People v. Koerner, 154 N. Y. 366, 367.)
■ Finally it is claimed the.court erred in admitting People’s Exhibits 6 and 7 — a letter and envelope — which the deceased sent to the wife of the witness Shedlock,- stating in substance that her engagement to the defendant was broken. It is a. little difficult to see ' what bearing tins had on the issue which was being tried, unless it be to establish the fact that the engagement.between the deceased and defendant was broken. But that fact was not disputed by the"
In conclusion, I am satisfied from a careful consideration of the voluminous record that the defendant has had a fair trial, and no errors were committed which are sufficient to justify a reversal of the judgment. We are required under section 542 of the Code of Criminal Procedure to give judgment without regard to technical errors or defects, or to exceptions which' do not affect the substantial rights of the parties. The decedent lost her life by the act of the defendant. There may possibly be some doubt -— and the jury evidently thought there was and gave the defendant the benefit of it — as to whether his act which caused her death was premeditated, but there can be no reasonable doubt, as it seems to me, that he was responsible at the time for the act. Every act of his on the day of and immediately prior to the shooting indicates that he had intelligence enough to appreciate what he was doing and to distinguish between right and wrong. It may be that he intended to commit suicide, but if he did, his own acts would seem to indicate that he intended to kill Pose Redgate before he took his own life. It may be that he drank the pint of whisky and took the forty grains of phenacetine, but if he did so, it is quite evident that it was for the purpose of nerving himself to commit the crime which he did. If he had previously determined to commit the crime, then voluntary drunkenness was no defense. His act was none the less criminal on that account, although his condition might be considered in determining the purpose, motive or intent with which he committed the crime. (Penal Code, §§ 21, 22; People v. Pekarz, 185 N. Y. 470; People v. Krist, supra.)
1 think the defendan t was properly convicted and the judgment appéaled from should be affirmed.
Patterson, P. J., Laughlin, Houghton and Soott, JJ., concurred.
Judgment affirmed. Order filed.