Lead Opinion
Thе defendant has been convicted of murder in the first degree, the homicide having been perpetrated, it has been found, while the offender was engaged in the commission of a felony.
An earnest argument has been addressed to us that the verdict of the jury is contrary to the evidence. The identification of the defendant as the assailant and the fugitive, though made by disinterested witnesses, is said to be mere mistake, the product of suggestion or perhaps of officious zeal. The confessions to the police, an important, though not the sole basis for the finding that the assailant, when he shot, was engaged in the commission of a robbery, are repudiated as utter fabrications, concocted by the officers of the lаw after a futile endeavor to extort genuine confessions by resort to threats and violence. We have examined the record
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with the patient care exacted by the life that is at stake. Inconsistencies and uncertainties are not lacking altogether. They are not so vital as to condemn the verdict. A question of fact remains, involving an aрpraisal by a jury of the credibility of witnesses, and incapable of satisfactory solution by the study of the printed page
(People
v.
Rodawald,
The judgment being upheld as to the facts, we are to consider whether the chargе to the jury, unchallenged at the trial by objection or exception, exhibits fundamental error in its statement of the law
(People
v.
Semione,
The defendant insists that upon a trial for homicide perpetrаted in the commission of another and independent felony
(People
v.
Moran,
The charge is in accordance with the settled doctrine of this court, which deserves to be stated in an opinion, since arguments before us both in this case and in others disclose uncertainty as to the governing principle in the minds of members of the bar.
Code of Criminal Procedure, section 395, provides that a confession оf a defendant “ is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.” The crime charged against this defendant is homicide, аnd the fact that a homicide has been committed is proved,
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without reference to a confession, by the testimony of eye-witnesses as well as by the discovery of the body, beаring tokens of a fatal wound
(People
v.
Deacons,
The defendant, indeed, does not contend that there would be need for corroborating evidence of degree if the cаse had been submitted to the jury under Penal Law, section 1044, subdivision 1, as a homicide committed with a deliberate and premeditated design to kill. The argument is that a different measure of cоrroboration becomes necessary when the case is submitted under subdivision 2 as a homicide effected without a design to kill by a person engaged in the commission of a felony. Thе distinction so drawn proceeds upon a false conception of the function of an accompanying felony in a prosecution for the crime of murder. Its function аnd its significance were clearly expounded by this court, speaking by Hiscock, Ch. J., in
People
v.
Nichols
(
The doctrine of
People
v.
Nichols
has been applied by this court in later eases, decided without opinion, where the point was made by counsel that a
“
fеlony ” murder was not sufficiently corroborated unless the corroboration of the homicide extended to the felony. Illustrations are
People
v.
Hirsch
(
The court did not еrr in charging the jury in effect that the discharge of a pistol by a defendant who is holding it in his hand in furtherance of an attempt to rob, will lay the basis for a verdict of murder in the first degree, though the disсharge was not intended, an accident induced by the terror or nervousness or excitement of the robber
(Commonwealth
v.
Lessner,
274 Penn. St. 108;
People
v.
Udwin,
The court did not err in charging that, apart from the confessions, the testimony of the witnesses Dempster, Rawlins and Callan, if credited by the jury, might be found to be sufficient to establish the defendant’s guilt. Dempster heard the exclamation by Lefkowitz, the victim of the crime, “ He shоt me and robbed me,” and saw the defendant run out of the shop, his victim after him. Rawlins looking into the shop saw Lefkowitz with his hands up in the air, and saw the defendant facing him and holding a revolver. Callan testified to identification and pursuit. The defendant, who took the stand, disclaimed any previous acquaintance with Lefkowitz, and surely had no grudge against him that would have supplied a motive for the killing apart from the design to rob. In the setting of the occasion, a robbery or attempted robbery was the only reasonable inference as to the motive for thе crime, if the jury credited the testimony of Dempster, Rawlins and Callan, and this whether the confessions were spurious or genuine.
Other rulings have been considered, but no error has been found in thеm.
The judgment of conviction should be affirmed.
Concurrence Opinion
(concurring). Having expressed my views in
People
v.
Joyce
(
The important proof in a felony murder is the felony, becаuse this makes the act of killing murder in the first degree, even though the defendant did not intend to kill. The form of the indictment cannot obscure the reality. There are no degrees of crime in a felony murder; the felony being proved, it is murder in the first degree, and nothing else. The jury cannot convict of a lesser degree of the crime. The felony, be it larceny or burglary, must be proved beyond a reasonable doubt ■—so the court must charge the jury. Yet under this present rule the felony, be it burglary or larceny, may be established by the defendant’s confession alonе, whereas if he were being tried for the minor felony, such as burglary or larceny, he could not be convicted solely on his confession. Such inconsistency does not appeal to me. However, the other view has prevailed and is the law for this State.
Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur with Cardozo, Ch. J.; Crane, J., concurs in memorandum.
Judgment affirmed.