People v. Murray

40 N.Y.2d 327 | NY | 1976

Lead Opinion

Gabrielli, J.

Defendant was indicted for the crimes of common-law murder, felony murder, two counts of attempted robbery, attempted grand larceny and possession of a weapon as a felony. He had admitted and confessed to a police officer that during the course of attempting to rob a man sleeping in an automobile, a struggle ensued, and he stabbed and killed a man.

The critical issue presented is whether, in a felony murder prosecution based upon a full confession of guilt, the confession corroboration statute (CPL 60.50) requires the People to prove the commission of the predicate felony by evidence independent of that contained in the confession. Determination of this issue turns on the meaning ascribed to the rule set forth in CPL 60.50, which provides that:

"A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.”

While the wording of CPL 60.50 differs slightly from that of its 1881 predecessor (Code Crim Pro, § 395), the Legislature manifested no intention of changing the meaning or requirements of the confession corroboration rule when it enacted the CPL in 1971 (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.50, p 331).¹

Following a pretrial confession suppression hearing, defendant’s statement, made to Mount Vernon Police Detective Frank Tetro, was held to have been voluntarily made and admissible in evidence. At trial, Detective Tetro testified that after administering the standard preinterrogation admonitions (see Miranda v Arizona, 384 US 436), defendant described what had occurred at 6:00 a.m. on August 5, 1972 on West Third Street in Mount Vernon. According to this evidence, defendant stated that as he walked along that street, he saw a man slumped over the steering wheel of a car, apparently sleeping, and decided that "he would take him [the victim] off”. After unsuccessfully attempting to enter the car, defendant opened the driver-side door, awakened the victim and said, "Man, do you know you can be taken off here? You can be mugged”. Whereupon the victim answered, "Don’t worry. I can take care of myself’, and offered the defendant some french fries. Detective Tetro further testified that "it was then that [defendant] stated that he said to the victim, T’m going to take you off. Give me all your money.’ With this, the victim turned in the seat of the car. As he was getting out, he kicked [defendant], knocking him to the ground. The victim got out of the car. He was standing against the door. [Defendant] said he got up off the ground, punched the victim. The victim in turn punched him and knocked him back to the ground again and he said at this time he had an open knife in his pocket, took it out of his pocket, got up off the ground and plunged the knife into the victim. He said he stood there and he seen blood coming out of the victim’s shirt. He said at this time he panicked, and he ran around the car and went into the hallway of 57 West Third, out to the backyard, where he "stated he dropped the knife, and continued out, jumped the fence and went out onto Eighth Avenue.” Medical testimony showed that the fatal knife wound entered the victim’s heart from a left to right angle of 15 degrees and was from three and a half to four and a half inches deep. There was evidence, via the autopsy, that the victim’s brain showed a .20% blood alcoholic content at death, and that he had french fries and nonred meat in his stomach. Other evidence established the presence of french fries spread in and about the vehicle.

Defendant took the stand in his own defense and denied the statements attributed to him by Officer Tetro. He claimed that the victim was an illicit drug supplier known as "Tee” to whom he, an addict and small-time pusher, owed money. He asserted that, in the course of a disagreement and resultant struggle over the quality of drugs supplied to him and the amount of money he owed therefor, he stabbed "Tee” in self-defense and then fled from the scene.

After the prosecution had rested, the Trial Judge granted a defense motion to dismiss the attempted robbery and larceny counts on the ground that the prosecution had not corroborated the confession as to commission of those crimes. The jury was charged as to the remaining three counts and also as to manslaughter, first degree, as a lesser-included offense of the common-law murder count. The jury found defendant guilty of felony murder, manslaughter, first degree, and felonious possession of a weapon. These convictions were affirmed by an unanimous Appellate Division.

The effect of the confession corroboration statute is to require proof of the corpus delicti (People v Reade, 13 NY2d 42, 45), a requirement universally followed by other States (see Ann., 45 ALR2d 1316). Generally, proof of the corpus delicti requires a showing: (1) that a loss has occurred (i.e., in a homicide, a deceased person) and (2) that the loss resulted from somebody’s criminality (People v Bennett, 49 NY 137, 143; 7 Wigmore, Evidence [3d ed], § 2072).² The purpose of the first element is to establish that the loss or death actually did occur and the purpose of the second element is to insure that the loss or death did not occur as the result of an accident, suicide, disease or other natural cause; or, put another way, that the loss or death did in fact occur as the result of human agency (see Wigmore, op. cit., pp 401-402). The requirement has never been extended, insofar as our research reveals, to require negation of any possible claim of self-defense. Indeed, the requirement of proving the corpus delicti evolved at common law apart from any justification defense concerns (see, generally, Note, 103 U Pa L Rev 638). It arose principally from the confluence of two factors: first, the shock which resulted from those rare but widely reported cases in which the "victim” returned alive after his supposed murderer had been convicted (see, e.g., Trial of Stephen and Jessie Boorn, 6 Am St Trials 73; see, generally, State v Howard, 102 Ore 431; cf. Smith v United States, 348 US 147, 153);³ and secondly, the general distrust of extrajudicial confessions stemming from the possibilities that a confession may have been erroneously reported or construed (see State v Saltzman, 241 Iowa 1373, 1379; Commonwealth v Turza, 340 Pa 128, 134), involuntarily made (see, e.g., Brown v Walker, 161 US 591, 596-597), mistaken as to law or fact,⁴ or falsely volunteered by an insane or mentally disturbed individual (see People v Buffom, 214 NY 53, 57).

Consonant with this rationale, the Legislature codified the common-law rule (see People v Bennett, 49 NY 137, 143, supra) and enacted what became CPL 60.50 which requires additional proof of the crime to obviate the "danger that a crime may be confessed when no such crime in any degree has been committed by any one” (People v Lytton, 257 NY 310, 314; see People v Daniels, 37 NY2d 624, 629). The additional proof need not be direct evidence linking the defendant to the crime (People v Brasch, 193 NY 46, 59). It sufficies to show corroborating circumstances "which, when considered in connection with the confession are sufficient to establish the defendant’s guilt in the minds of the jury beyond a reasonable doubt” (People v Conroy, 287 NY 201, 202). Moreover, it is not necessary that the proof include "every reasonable hypothesis save that of guilt” (People v Cuozzo, 292 NY 85, 92). As we wrote in People v Jaehne (103 NY 182, 199-200) and repeated in People v Reade (13 NY2d 42, supra): "when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury”. Thus, we have said that "presence at the scene, proof of motive, evidence of flight and other conduct indicating a consciousness of guilt may * * * be held to constitute the essential additional proof’ (Reade, supra, at p 46). Indeed, "the statute is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone” (People v Daniels, 37 NY2d 624, 629, supra).⁵

We hold that the proof adduced here was sufficient and adequate to satisfy the requirements of CPL 60.50. The prosecution established the corpus delicti aliunde the confession by showing the fact of death and that the cause thereof was a knife wound, a nonnatural cause. In addition, the evidence of the depth, angle, and accuracy of the wound further corroborates the fact that the wound was not accidental. And even were all that evidence not sufficient, which it clearly is, it was also shown, apart from the confession, and as Reade (supra) states to be satisfactory "additional proof’, that the defendant was present at the scene of the crime, that he had a motive (i.e., to rob the victim to support his drug habit) and that after the stabbing, the defendant fled from the scene. In fact, the defendant’s in-court testimony establishes each of these corroborating circumstances. We conclude, therefore, that the confession was corroborated by abundant evidence and, as could be found by the jury, beyond a reasonable doubt.⁶

We reject, as this court has done on at least four other occasions (People v Louis, 1 NY2d 137; People v Gold, 295 NY 772; People v Lytton, 257 NY 310, supra; People v Joyce, 233 NY 61), the argument that evidence of the underlying felony must be corroborated in a felony murder prosecution. In Lytton, Chief Judge Cardozo held that the evidence corroborating the identification of the defendant as the person who fired the fatal shots along with the additional evidence showing "the body, bearing tokens of a fatal wound”, was "sufficient to confirm confession of a homicide” (p 314); and he also made clear that the confession corroboration rule does not require that the particular degree of the homicide be confirmed. Thus, the argument that a different measure of corroboration was necessary in a felony murder case than in one involving common-law murder was found lacking. Likewise, in People v Louis (1 NY2d 137, 140-141, supra) the court held that in establishing a felony murder charge, "there [is] no need for evidence, separate and apart from the [defendant’s confession] of the underlying felony” (see, also, People v Gold, supra; People v Joyce, supra; cf. People v Roach, 215 NY 592, 601). No reason appears to require us to now depart from these sound, established precedents.

Nor is the New York rule unique. In People v Cantrell (8 Cal 3d 672) the California Supreme Court unanimously rejected the claim that the People need establish the corpus delicti of the underlying felony to introduce a defendant’s extrajudical statements. Held sufficient there were statements by the defendant that he had been sexually molesting the victim immediately before he strangled him, thereby establishing the requisite felony upon which the felony murder charge was based.

Defendant contends nevertheless that the dismissal of the underlying felony counts perforce requires dismissal of the felony murder charge. However, we have only recently rejected that very argument (People v Dennis, 33 NY2d 996, affg 40 AD2d 959). Moreover, any claim of double jeopardy or collateral estoppel is untenable upon the facts of this case for it is manifest that the dismissal of the predicate felonies was solely the result of the lack of corroborating evidence thereof, and not any failure to prove the crimes beyond a reasonable doubt. Hence, the factual question whether defendant committed the acts charged was left open for the jury, their having conclusively decided the issue in favor of the prosecution.

We find no merit in the additional argument that the change in form of indictments (see CPL 200.50) effected by the enactment of the CPL in 1971 was in any way intended to alter or strengthen CPL 60.50. As noted at the outset, the drafters of CPL 60.50 intended no change in its scope and retained "the corroboration rule enunciated in Criminal Code § 395” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11B, CPL 60.50, p 331). No legislative history exists to support a contrary conclusion.

The confession corroboration rule does not require that each element of the crime of felony murder be established by evidence apart from the confession. Indeed, Professor Wig-more called several aberrant holdings requiring such additional proof "too absurd to be argued with” (7 Wigmore, Evidence [3d ed], § 2072, subd [3]). As has been made plain, "the confession alone is enough to implicate the defendant; the independent evidence need not connect or even tend to connect the defendant with the crime” (People v Jennings, 33 NY2d 880, affg on the opn thereat 40 AD2d 357, 362). By requiring the production of additional proof aliunde the confession the dissenters are urging the adoption of a "second best” evidence rule, ironically preferring circumstantial proof of the actor’s aim over his own assessment of what he thought he was doing. In short, the purpose of CPL 60.50 is to establish that the deed was done and by a human agency; thereafter, the truth of the confession and the proof of intent is for the jury.

As to the felony murder conviction, I would further add that some of us hold that even if the rule posited by the dissenters were to be applied in this case, an affirmance would nonetheless be required. There was sufficient evidence of the predicate felony to satisfy the meager requirements of CPL 60.50, as indicated by the signs of a struggle, the clothing of the victim being in a state of disarray and, further, that his wallet, later recovered and returned to the family of the victim, was not found at the scene (see People v Daniels, 37 NY2d 624, supra; People v Jennings, 33 NY2d 880, affg 40 AD2d 357, 362, supra).

A defense request that, on the common-law murder count, the Trial Judge charge the jury as to manslaughter, second degree, was denied. Upon this record, this was error (People v Tai, 39 NY2d 894).

Accordingly, the order of the Appellate Division should be modified to the extent of reversing defendant’s conviction of manslaughter, first degree, and a new trial granted thereon; and, except as so modified, the order should be affirmed.

1 . Section 395 of the Code of Criminal Procedure reads:

“A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.”

2 . At one time some States also required proof of the identity of the wrongdoer (see 7 Wigmore, Evidence [3d ed], § 2072, subd [3]). However, that requirement no longer appears to be the law anywhere (see Ann., 45 ALR2d 1316; 3 Wharton’s Criminal Evidence [13th ed], § 691).

3 . In the Boorn case, the two defendant brothers had confessed, were convicted and sentenced to be hanged when the "victim” appeared alive.

4 . See, e.g., Gardner v People (106 Ill 76), where an immigrant unable to understand English confessed to a murder that may actually have been noncriminal homicide; and State v Johnson (95 Utah 572) where the defendant confessed to smothering a baby as it was born when in fact the baby may have been stillborn.

5 . The additional requirement of proving intent without reference to the confession, propounded by the dissenters, is a derelict in the law. It is the universal rule that apart from the confession some evidence, but not evidence proving guilt beyond a reasonable doubt, is required (Ann., 45 ALR2d 1316, 1331-1333, and Supps, citing decisions in at least 27 States and the United States Supreme Court).

6 . We would emphasize, contrary to suggestions in the dissenting opinion, that the jury verdict is rational and readily explainable. While the jury obviously concluded by its acquittal on the common-law murder charge that defendant did not cause the death of the victim with the intention of so doing, they nevertheless could properly have found, as they did, consistent with the evidence, that defendant feloniously possessed a weapon and, in the course of attempting to commit robbery, intentionally caused serious physical harm to the victim which caused his death, thereby committing the crimes of felonious possession of a weapon, manslaughter, first degree, and felony murder. It is significant that the intent to cause the death of another person is an element of common-law murder (then Penal Law, § 125.25, subd 1, which, in pertinent part, read: "A person is guilty of murder when: 1. With intent to cause the death of another person, he causes the death of such person”); and obviously is not an element of felony murder (then Penal Law, § 125.25, subd 3, which, in pertinent part, read: "A person is guilty of murder when: 3. * * * he commits or attempts to commit robbery * * * and, in the course of and in furtherance of such crime * * * he * * * causes the death of a person”).

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Dissenting Opinion

Jasen, J.

(dissenting). Defendant Melvin Murray was convicted, after a jury trial, of felony murder, manslaughter in the first degree and the felonious possession of a weapon. The conviction was predicated solely upon defendant’s admissions to the police that he fatally stabbed Donald Carney when Carney resisted defendant’s attempt to rob him. The Appellate Division unanimously affirmed the judgment of conviction in a brief entry and a Judge of this court granted defendant leave for further appeal.

The principal issue before us is whether a conviction for felony murder may stand though the evidence is legally insufficient to support a conviction for the underlying predicate felony. I would hold that it cannot and two of my brethren share my view. Three other members of the court take the opposite view. The seventh member of the court takes the position that the issue need not be resolved to decide this case since there is sufficient corroboration to sustain this conviction for felony murder. The division in the court today, unfortunately, leaves the question of law in limbo. The policy of this State that no person be convicted solely upon his own admission or confession requires that, where a defendant confesses to a felony murder, the prosecution must produce corroborating evidence of both the felony and the murder. Here, adequate corroboration of the underlying felony was not presented and, therefore, the defendant’s conviction for felony murder cannot stand.

In the early morning hours of August 5, 1972, two Mount Vernon police officers assigned to the Emergency Command Unit were on a routine patrol in the vicinity of Seventh Avenue and Third Street. A passing motorist hailed the patrol car and, through an open window, shouted that there was a man lying in the street between Seventh and Eighth Avenues. The officers turned the corner and found a man lying face down in a pool of blood in front of 59 West Third Street, a few feet away from an unoccupied automobile. The police found part of a broken denture, some particles of food and food packaging, both directly underneath the vehicle as well as on the driver’s seat. There was a considerable amount of blood on both the interior and exterior of the car. The injured man, still bleeding from a chest wound, was taken to the emergency room of Mount Vernon Hospital where, shortly after arrival, he died. A brief search of the body did not produce a wallet or other identification. Each of the responding officers reported that they did not find a wallet on the deceased’s person. At some point, however, the wallet must have been recovered since the widow testified that the police later returned her husband’s wallet, with identification papers and some currency still inside. The police did find an out-of-State vehicle title certificate, listing the owner as Donald Carney, in the glove compartment of the automobile. Mrs. Carney, a resident of New Rochelle, was summoned to identify the body.

The police commenced their investigation by taking several carloads of bystanders down to police headquarters for questioning. The questioning and a search and examination of the vicinity failed to produce any leads. At approximately 10:00 a.m., the police received an anonymous telephone call which caused them to commence a search "for a man whose name we knew as Melvin”. The officers "went out and picked up several persons we knew and we talked with informants and found another person by the name of Melvin and the only one we couldn’t locate was a Melvin Murray at 156 South 13th Avenue. We had gone to that address, we spoke to a few people about him. Nobody had seen him. And then we returned to headquarters.” In the afternoon, the police received a telephone call from Gladys Murray, the defendant’s mother, inquiring whether the police were looking for her son. She told the police that she had not seen her son since the previous day but would tell him that the police were looking for him.

Later that evening, at approximately 6:15 p.m., the defendant and a woman entered the office of the Detective Division of the Police Department. The defendant asked the desk officer whether there was a warrant out for his arrest. After a check of the records, the officer asked the defendant "if that was the real reason he had come in.” The defendant replied negatively, "it was about the thing on Third Street”. The defendant was brought into an interview room and was given the standard preinterrogation warnings. The defendant then stated "that he had gotten into a fight and that he had stabbed him.” The defendant was immediately booked and the detective assigned to the case, Detective Tetro, was summoned back to headquarters. Detective Tetro repeated the standard preinterrogation warnings and obtained a more complete statement. The defendant told Tetro that as he was walking past 57 West Third Street, he noticed a man slumped over the steering wheel of a car. After walking to the corner, defendant decided to "take the man off’ and returned to the car. The passenger-side door would not open and knocks on the window failed to arouse the driver. He walked over to the driver’s side, opened the door, and woke the driver up. After defendant demanded money, the driver turned in his seat and kicked the defendant, knocking him to the ground. After an exchange of punches, defendant took a knife from his pocket and stabbed the driver. The defendant fled the scene, dropping the knife in the backyard of the building at 57 West Third Street. Defendant went to a friend’s home where he changed his shirt. After taking the statement, Detective Tetro and other officers brought the defendant to the scene of the crime. A search of the area described by defendant failed to turn up the knife. A stop at the friend’s home produced a shirt without blood on it that "appeared to be new and clean”, this despite the extensive bleeding of the deceased resulting from his chést wound.

The defendant was indicted for murder, felony murder, two counts of attempted robbery in the first degree, attempted grand larceny in the third degree, and felonious possession of a weapon. At the close of the People’s case, the court granted motions to dismiss both attempted robbery counts and the attempted grand larceny count. At trial the People relied upon the admissions of the defendant and medical testimony indicated that Carney had died of a stab wound in the chest. Defendant testified that he owed Carney, known to him as "Tee”, a sum of money and, after leaving a party, he met Carney by coincidence in front of 70 West Third Street. After defendant told Carney that he would have to wait for his money, Carney struck the defendant. The defendant was getting the better of the ensuing fight and Carney reached into a pocket and pulled out a knife. The defendant grabbed Carney’s arm and the men struggled for the knife. After a while, Carney ceased struggling, the defendant backed away, and the knife fell into the street. When Carney did not respond to a question, defendant became scared and ran away.

It is plain from a review of the evidence that the People’s case rested entirely upon the defendant’s admissions, coupled with the corpus delicti, a body bearing the tokens of a criminal assault. In our view, there was no corroboration at all of the attempted robbery confessed and that the robbery-related charges were properly dismissed. The reliance of four members of the court on the indicia of a physical altercation and the absence of a wallet on deceased’s body for corroboration is misplaced. Defendant concedes that there was an altercation, only he contends, as brought out during the trial, that the brawl was induced by deceased and that his response was prompted by a legitimate need for self-defense. Thus, the physical signs of a struggle are as "corroborative” of defendant’s trial testimony as they might be of his confession and, thus, lack any probative value at all. The absence of a billfold is an obvious makeweight. The body of the deceased remained in the street for a considerable period of time before it was discovered and when the police arrived, there were a number of bystanders in the immediate vicinity. Any one of these persons, or any other individual who happened along, could have removed the billfold. More fundamentally, there was no proof that defendant even had a billfold in his possession at any time on that day. Additionally, the court voting for the result reached in this case does not consider the fact that when the wallet was returned to the widow by the police, identification papers and currency were still inside. This is an additional factor negativing the possibility of a robbery, for if the defendant did commit the robbery and take the wallet he would scarcely have neglected to take the money. Indeed, in his confession, he never stated that he took the wallet, claiming that the deceased resisted his attempt, that he panicked when he knifed the deceased, and immediately fled the scene. The fact that the police later returned the wallet to the widow adds nothing because they never explained how the wallet came into their possession. Certainly it is possible that the wallet was discovered on a subsequent inventory of the deceased’s personal effects and turned over to the police by the widow herself for purposes of assisting the investigation. Even though the confession corroboration requirement is one of the weakest in our law, corroboration by evidence, and not by speculation, is required to satisfy the statute. The arguments put forth by these members of the court, and relied upon by Judge Wachtler, are based upon unsubstantiated hypotheses and not upon acceptable proof. Appellate court speculation is not and, hopefully, will never be, a substitute for evidence and, particularly, where such "evidence” commits a man to prison for murder.

Whether the evidence that was submitted to the jury, i.e., defendant’s admission coupled with the finding of the body, suffices to support the felony murder conviction, though the predicate felony could not be proved, hinges on the interplay of two separate legal doctrines: the concept of felony murder and the requirement that admissions be corroborated. A person is guilty of murder in the second degree¹ when he commits or attempts to commit one of nine predicate felonies and in the course of or in furtherance of or in flight therefrom, he or another participant in the felony causes the death of a nonparticipant. (Penal Law, § 125.25, subd 3.) Under modern statute, as well as at common law, the fact that a homicide was committed in the course of a felony itself supplied proof that the homicide was committed with the malice and felonious intent necessary to sustain a murder conviction. Even where it was evident that the defendant did not and could not have intended to kill, "the malicious and premeditated intent to perpetrate one kind of felony, was, by implication of law, transferred from such offense to the homicide which was actually committed, so as to make the latter offense a killing with malice aforethought, contrary to the real fact of the case as it appeared in evidence.” (People v Enoch, 13 Wend 159, 174, 175; People v Hüter, 184 NY 237, 243; People v Nichols, 230 NY 221, 226-227; People v Luscomb, 292 NY 390, 395.) "It is the malice of the underlying felony that is attributed to the felon”. (People v Wood, 8 NY2d 48, 51; see, also, People v Bornholdt, 33 NY2d 75, 85, cert den sub nom. Victory v New York, 416 US 905.) The felony murder doctrine infers from the intent to commit one of nine serious felonies the intent to commit, if necessary, a murder in order to achieve the criminal purpose. (See Gegan, Criminal Homicide in the Revised New York Penal Law, 12 NY Law Forum 565, 586.) By benefit of statute, therefore, it is possible to obtain a felony murder conviction where the defendant could not be convicted of common-law murder since he did not act with specific homicidal intent. The vital item then in felony murder is the predicate felony, for without it the delicate legal fiction has no play.

At the same time, the law continues to provide that no person may be convicted by his own statement alone. Before a conviction may be had, a confession or admission must be corroborated by "additional proof that the offense charged has been committed.” (GPL 60.50.) This requirement, the weakest of all corroboration requirements, is designed to guard against the possibility that a defendant might be convicted and jailed for a crime that never occurred. Thus, the prosecution must adduce some proof, of whatever weight, that a crime was committed by someone. (See, e.g., People v Daniels, 37 NY2d 624, 629; People v Reade, 13 NY2d 42, 45; People v Cuozzo, 292 NY 85, 92.)

In People v Lytton (257 NY 310), this court first directly considered the extent to which a confession had to be corroborated to prove a felony murder. In Lytton, the defendant admitted firing the fatal shots while engaged in the commission of a robbery. Disinterested witnesses identified the defendant as the assailant. Thus, the confession was not the sole basis for finding that the murder was perpetrated in the course of the felony. (257 NY, at p 312.) Chief Judge Cardozo, speaking for the court, ruled that the "crime charged against this defendant is homicide, and the fact that a homicide has been committed is proved, without reference to a confession, by the testimony of eye-witnesses as well as by the discovery of the body, bearing tokens of a fatal wound.” (257 NY, at pp 313-314.) Since at that time an indictment did not even have to allege the homicide was committed in the course of another felony, the court indicated that there was no need for independent corroboration of the underlying felony. (257 NY, at p 315.)² Of course, such a statement was unnecessary for the decision since there were two witnesses who testified to the facts of the robbery. (257 NY, at p 316.) In People v Louis (1 NY2d 137, 140-141), the court directly held that since the charge was "murder, not robbery”, "there was no need for evidence, separate and apart' from the statements [of the defendants], of the underlying felony.” However, none of the four cases cited for that proposition squarely support the view expressed. In three of them, only one of which involved a felony murder, there was other evidence aside from the confession of the defendants. (People v Gold, 295 NY 772; People v Lytton, supra; People v Roach, 215 NY 592, 596.) In the fourth case, inconsistencies in the confessions led to reversal of the judgment of conviction. (People v Cuozzo, 292 NY 85, supra.)

In any event, the CPL, effective September 1, 1971, did away with the old common-law form of murder indictment (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL art 200, p 195) and, thus, removed the underpinnings of the Lytton "rule”. In Lytton, the court relied upon the fact that it was not necessary to allege that a murder was committed in the course of another felony. However, since 1971, it has been necessary for the prosecution to allege the commission of a "designated offense” and each offense charged must be alleged in a separate count. (CPL 200.50, subds 3, 4.) Moreover, each count must contain a "plain and concise” statement asserting facts which support every element of the offense charged. (CPL 200.50, subd 7.) Thus, it is now necessary, as was done in this case, to allege murder and felony murder in separate counts, with the felony murder count setting forth the commission of a specific underlying predicate felony.

It is right that the prosecution be required to allege, in the felony murder count, the commission of a predicate felony. As previously noted, it is the felony that lends the basis for the felony murder conviction. Without the felony, the prosecution must prove, beyond a reasonable doubt, that the defendant possessed the requisite homicidal intent. In this case, there was absolutely no corroborating proof of the confessed attempted robbery. Yet the attempted robbery is relied upon to make this killing punishable as murder. It is of special significance that the jury, under another count of the indictment, refused to find the defendant guilty of common-law murder, finding, instead, that the defendant was guilty of manslaughter in the first degree. In other words, the jury found that although the defendant may have intended to commit serious physical injury to the deceased (Penal Law, § 125.20, subd l),³ he did not intend to kill the deceased. It is the operation of the felony murder doctrine that turns this "manslaughter” to "murder”. In our view, the fact that there is no corroborating proof of the underlying felony, the critical element in felony murder, is fatal to the conviction. As we have said, the sole evidence of the robbery is that which came from the defendant’s own admissions. The policy of this State is that no person can be convicted solely upon his own admission. Given this policy, it is, as a matter of logic, impossible to conclude that a felony of which there is legally insufficient proof may yet form the basis of a felony murder conviction. Our conclusion is basic: without sufficient proof of the felony, there cannot be sufficient proof of a felony murder. Our view is buttressed by the fact that in this case, the underlying felony was charged and the charge was, as it should have been, dismissed. If it is difficult to contend that a felony murder be found where the proof of the felony is insufficient, it is doubly difficult to argue that the felony murder conviction may stand though the underlying felony originally charged was dismissed.

We recognize the well-established rule that a confession of homicide is amply corroborated by the finding of a body bearing the indicia of a criminal assault. At the same time, there is the more fundamental rule that each element of the crime must be established by proof beyond a reasonable doubt. (CPL 70.20.) Thus, the confession in these cases must supply both the intent and the act. If the defendant admits an intentional killing, the finding of the corpus delicti amply verifies that admission. On the other hand, if the defendant informs the police of a justifiable homicide, then the requisite intent must come from outside the confession. Similarly, in felony murder, where the intent flows from the underlying felony, there must be corroborating evidence of the felony. To state that the finding of the body corroborates the fact of a death in the course of a felony is to pile an inference on top of an inference. Although the People may have proved, with the aid of the confession, a homicide, they have not proved a felony murder. Since 1971, proof of a generic homicide has been insufficient. To obtain a murder conviction based on an admission, the admission must supply all the elements of the crime of murder, including intent, and the People must produce corroborating evidence. But here, they did not corroborate a felony murder and, according to the jury, did not prove an intentional killing.

We do not hold that in each case of felony murder the prosecution must charge and convict for the underlying felony. Rather, we hold simply that there must be, in the record, legally sufficient evidence to corroborate defendant’s admission that he participated in a felony during the course of which a death ensued. In this case, there is no corroboration and the conviction is not supported by legally sufficient evidence.

Three of our colleagues, with all due respect, miss the point. Although there may have been corroborating evidence of homicide, there has been no corroborating evidence of the felony underlying this felony murder conviction. There is no crime of homicide; there is the general category of homicide, with crimes defined in accordance with the intent of the perpetrator. Here, the defendant did not confess to intentionally killing his victim. Indeed, the jury found, on the count of common-law murder, that there was no intentional killing.

Although corroboration need not extend to every element of the crime, each element must be proved beyond a reasonable doubt. Where there is no proof of an intent to kill and no corroboration or an admission that a predicate felony occurred, the element of mens rea has not been established to the extent required by law. Here, there has been no proof of intent and, likewise, no legally sufficient proof of the predicate felony of attempted robbery. Hence, there has been no sufficient proof of defendant’s guilt of intentional murder, or of felony murder. It is fundamentally unfair, if not shocking to a concerned conscience, that, as our three colleagues maintain, an unproved felony may be employed to artifically raise the defendant’s culpable mental state. Surely, it is wrong to read the felony out of felony murder. We would free the defendant of the charge of felony murder because there has been insufficient proof, as a matter of law, of that crime. It is too late in the day to argue that a confession by itself is sufficient proof of guilt. It is even more obvious that a man should not be held for a crime for which his guilt has not been established in a court of law. We would hold that a man-slaughterer cannot be punished as a murderer because of the unsupported use of a legal fiction.

Had there been no error in the court’s charge with respect to manslaughter, second degree, we would have no difficulty in modifying the Appellate Division order appropriately. However, all the members of the court agree that the trial court erred in refusing to charge manslaughter in the second degree as a lesser-included offense. A defendant is entitled to a charge down to a lesser-included offense if, upon any view of the facts, a jury might properly find that the defendant committed the lesser crime and not the greater. (CPL 300.50; People v Asan, 22 NY2d 526.) "Under the circumstances of this case, the jury could reasonably have believed defendant’s claim that he was not the initial aggressor but only attempted to repel the victim’s attack upon him, and at the same time accept the evidence that defendant, at some point during the the struggle with the victim, inflicted fatal wounds on [him]. Thus, the jury might have found that defendant acted recklessly and therefore committed acts constituting manslaughter in the second degree (Penal Law, 125.15)”. (People v Tai, 39 NY2d 894.) The refusal to charge manslaughter in the second degree was error requiring a new trial.

We conclude, therefore, that the order of the Appellate Division should be reversed; the felony murder count in the indictment should be dismissed (CPL 470.40, subd 1; 470.20, subd 2); and a new trial should be ordered on the remaining counts of the indictment.

Judges Jones and Cooke concur with Judge Gabrielli; Judge Wachtler concurs in a separate opinion; Judge Jasen dissents and votes to reverse in another separate opinion in which Chief Judge Breitel and Judge Fuchsberg concur.

Order modified and case remitted to Westchester County Court for a new trial in accordance with the opinion herein and, as so modified, affirmed.

1 . At the time of this occurrence, the Penal Law contained the single degreeless crime of murder. When the Penal Law was revised in 1974 to include the capital offense of murdering a police officer (see Penal Law, § 125.27), the former murder statute was retitled, without a change in substance, murder in the second degree. (L 1974, ch 367, § 4.)

2 . Judge Crane took the view that the "form of the indictment cannot obscure the reality.” He noted that the "important proof in a felony murder is the felony, because this makes the act of killing murder * * * even though the defendant did not intend to kill.” In his opinion, he recognized that, in felony murder, there can be no conviction for a lesser-included offense since there is no possible shading of felonious intent as there is with respect to homicidal intent. (People v Lytton, 257 NY 310, 317 [Crane, J., concurring]; see, also, People v Joyce, 233 NY 61, 73-75 [Crane, J., concurring].)

3 . This finding is, by itself, suspect because of the refusal of the court to charge down to manslaughter in the second degree, an issue discussed more fully infra.

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Concurrence Opinion

Wachtler, J.

(concurring). I concur in the modification but solely on the ground that there was sufficient corroboration of the underlying felony.