211 A.D. 446 | N.Y. App. Div. | 1925
Lead Opinion
The charge upon which the defendant was convicted was that on December 10, 1921, she “wilfully, feloniously and of malice aforethought, shot and killed Abraham Glickstein.” Glickstein was a physician, about forty-three years old, a married man anfd father
At the time-she killed Glickstein the defendant was twenty-nme years old; her mother was dead; her father was vmg, ex' ^ name was Schaefer; but on the 8th day of May, , ’ the May preceding the tragedy, she was married to a man named Charles S Ratei It is undisputed, by the testimony of the defendant herself and by other witnesps in ^ l„fions for defendant and her victim had maintained mere ncio
The prosecution contended on the trial and contends on this appeal that the homicide was committed with premeditation, deliberation and intent, and that the claim of insanity and mental disorder, and the so-called unbalancing of the defendant's mind was part and parcel of an ingenious and well-prepared plan to kill the doctor, trusting to her carefully and skillfully timed and widely circulated so-called delusions and obsessions to escape the consequences of her act. And the People further claim that "the evidence adduced on the trial fully sustained this charge.
The defendant contends that the People failed to establish its case against her beyond a reasonable doubt; that the verdict is against the weight of credible evidence; that prejudicial rulings and errors Were made by the trial court, and that having, as they claim, proved the defense of legal insanity, the verdict arrived at by the jury can only be accounted for on the theory of these prejudicial rulings and the unfavorable attitude of the trial court towards the defendant. The judgment of conviction is challenged by the appellant here on six specific grounds: First. That the State has not only failed to establish the sanity of this defendant beyond a reasonable doubt, but, on the contrary, the legal insanity of the defendant was convincingly proved by an overwhelming preponderance of the credible testimony. Second. That the court erroneously excluded evidence fending to show that three well-known alienists examined the defendant at the request of the district attorney very shortly after the commission of the homicide, and
Taking up these objections along the lines of orderly procedure, and concerning .the point made that the attitude of the trial judge towards the talesmen-while they were being examined was of such a character as to bring about an intimidation ^ of the jury and calculated to suppress their real views and opinions, the effect of the court’s act being as counsel claims "to prevent an honest expression of their sympathies, sentiments and convictions, so as to-deprive the defendant of a fair knowledge of the views of the talesmen on matters pertinent to the inquiry, and of facts upon which the defendant could determine whether-to accept or rejec the juror.” It appears that there is no justification for this charge against or reflection upon the learned justice who preside a e trial. The record discloses that at the opening of the trial the first-talesman was called and sworn. The district attorney asked him if he had any scruples against capital punishment, an w e_ they were restricted to men or women.. The witness replied that he had, and that it applied to every one.- The court then examined the talesman, and asked him how long he had the seriales, and the witness answered: " Ten or fifteen years at eas . , asked: “ There has never been any period of timeTw,,enj^U- j been without them?” The talesman answered: -No. ^ J-Ue juage then showed him an affidavit in which he. had sworn that he ha no conscientious scruples against capital punishment. ^ e a es man asked to examine the affidavit, and the court said. y_ * you make that affidavit? It says that you have no scruples *again capital punishment.” The talesman answered. I n
Of course, it is perfectly plain that at this time the defendant had not exhausted her challenges to which she was entitled under the law, nor did the defendant’s -counsel make any protest or unfavorable comment upon the action of the trial judge. The record shows that the jury which finally heard the case was then impaneled without any unnecessary delay or interruption of the proceedings and the trial-proceeded.
This is the incident complained of in its entirety, and what there is in the conduct of the trial judge to complain of, so far as this episode is concerned, I cannot see, and hence I consider that the insinuations and remarks of the counsel for the defendant in connection with this jury incident are entirely unwarranted. The jury was a special one, known as a “ blue-ribbon ” panel; every one of those summoned had qualified for duty before the commissioner
Having reference to the claim of the appellant that the State not only failed to establish the sanity of the defendant beyond a reasonable doubt, all that can be said on this branch of the case is that the question of the guilt or innocence of the defendant was clearly one of fact for the jury to determine. There is no claim on the part of the defendant that this important question was not properly presented to the jury, and the jury found against her. The trial of the case took six days. Some thirty-five witnesses testified for the defendant and eighteen witnesses testified for the prosecution. The printed record on appeal here consists of 1,000 pages, and an examination of what took place upon the trial will, I think, conclusively show that the defendant was given every opportunity to present her defense before a jury of her own selection; and we have a situation where the triers of the facts heard all of the evidence on both sides, and after giving such evidence the due consideration to which it was entitled settled the questions of fact adversely to the appellant.
The case of the People was presented in a comparatively short time. They presented their direct case, which, of course, under the circumstances, was all that they were obliged to do, as on-the part of the defendant it was not disputed that she had shot and killed Glickstein. All that the People were required to do was to prove the appellant’s guilt beyond a reasonable doubt, and they were also required to prove her sanity beyond a reasonable doubt, and her sanity like every other question in the ease was one of fact for the jury. The weighing and consideration of the evidence is the jury’s peculiar province, and it is almost elementary that an appellate court cannot disturb its finding where the issues were properly submitted to it as in this case, and particularly in a charge of the court to which no exception was taken.
The defense, as I have said, was that at the time of the commission of the crime the defendant was so insane that she did not know the nature and quality of her act, nor did she know that it was wrong. Her counsel before us argues that under the facts established on the part of the defendant this defense was testified to “by alienists of recognized qualifications and of pre-eminent
The defendant testified in her own behalf. On the direct examination she was examined by her counsel, who, by thé way, was a very skilled criminal advocate, and he traced.her career from the time that she was a very small child up-to the day of the tragedy. From a reading of her testimony given upon the trial- it is evident from the manner in which the defendant testified that both her counsel and the trial judge had considerable difficulty in getting her to -talk loud enough so that the jury could bear her. . At times during the examination she interrupted and’ halted the trial completely by refusing to answer, also by becoming seemingly hysterical, emotional, and if I may use the word, rather theatrical, especially when some telling points in the evidence were made against her. Nevertheless, she told in detail the circumstances of - her early life and of her meeting with Glickstein the first time she ever called at his office for treatment. The examination proceeded in great detail, and without the slightest evidence of any lapse in memory at all on the part of the defendant she gave dates, incidents and facts.without any difficulty; she even related the particular conversation and the words used by the doctor and herself when he saw her, and she also described many of his acts. She talked intelligently about her Christian Science experience, stated the number of pounds of flesh she had lost, and told in detail the preparations that were made for her marriage. She testified fully as to her feelings and sentiments and described her trip to and from Florida. During this recital her counsel again told her that she would have to speak louder as he-could not hear her, and the court, remarked, “ You will have to talk louder -if you want the jury to hear you. Otherwise, there is no. use talking at all.” This admonition had to be repeated several times. Again the court was obliged to say to her:- “ If you want the jury to hear your story, .you.had better talk to them, instead of whining about it. Mr. Conway [her counsel]: May I have-the last answer read? The Court: No, sir; there is no occasion for it. The .witness, is able to talk, and does talk, at times, in a pretty strong voice. So there is no
When the cross-examination began the same difficulty was experienced in obtaining answers from the defendant. “ Q. [By Mr. Gallagher to the defendant] Now, if you keep your voice up, please, we will be through with this in shorter time. Do you remember going to the district attorney’s office on the night of December thirteenth? The Court: You had better answer a little more promptly. You will get through so much sooner. A. Yes, sir. Q. You didn’t cry that night at all, did you? A. I don’t remember.” The district attorney then asked her concerning the visits of Dr. Meagher to her in the Raymond Street Jail. The witness said she could not remember how many times the doctor had been there, or whether she cried or had trouble with her eyes. Here the court interjected: “ Q. Well, you are not crying now, are you? Are you crying now? A. Yes, sir. Q. That is what you call crying, is it? No tears, are there? A. Yes, there are tears. [By the District Attorney]. Q. Now, Mrs. Raizen, do you desire to shorten this examination? A. No, Mr. Gallagher; I will do whatever you say. Q. All right; stop this action, if you can, and let us get right along. Will you do that? A. I will try, yes, sir.”
I think it is apparent from such excerpts as I have given from the testimony of the defendant here that both the court and counsel
Another instance may be given where the defendant created a scene in the court room. She was asked upon cross-examination: “ Q. Did you ever try to purchase or to get anything that would deaden the sound, a silencer? A. I don’t know anything about — I don’t — no, I didn’t. Q. Did you ever make any inquiry as to whether you could get such a thing as a silencer? A. Whether I could get a silencer? Q. For a revolver? A. Or what? Or a revolver? By the Court: Q. For a revolver? A. Oh, a silencer for a revolver? No.” When confronted, however, with a letter which she had written to the firm from which she purchased the revolver, inquiring the price “ of a 32 x 38 calibre revolver with noiseless attachment,” she admitted that the letter was written by her, but gave utterance to such remarks as, “Oh, spare me; Spare me; ” and stopped the proceedings for a while. On the redirect examination by her counsel after this episode of the trial, the record shows that the witness again wept and that considerable difficulty was experienced in getting her story. At no time during the examination of the witness did it appear that she was at all deficient in her mental make-up and in no instance did she display any of the symptoms of insanity with which her medical witnesses swore she was afflicted, and I take it that the jury were fully convinced that the woman was not insane although one of her medical experts swore that she was insane long prior to the commission of the crime, at the time of the commission of the crime and that she was actually insane at the time of the trial. Her testimony given upon the trial, coupled with her confession which she freely made within a few hours after the shooting (a confession freely and voluntarily made by her) in the presence of her. counsel and her father, was in my opinion a complete contradiction of the medical experts’ statements that the woman was insane. Four physicians — alienists — testified to the appellant’s insanity at the
Another point is made by the appellant wherein it is claimed that the court committed error when it excluded the evidence tending to show the employment by the district attorney of alienists to examine the appellant. In connection with this point counsel for the appellant here practically charges the district attorney with suppressing evidence which counsel says it was the district attorney’s duty to produce. There is no merit in the point, and the circumstances in connection therewith do not justify the assertions made in reference thereto. It seems that a prior district attorney (not the one who was in office when this case was tried) had retained certain alienists to examine the defendant. Upon the trial the present district attorney did not care to avail himself of the services of these medical men, and in this I take it the district attorney, as representing the People, was clearly within his rights. Conceding for the moment that there is any force in the argument of the appellant under this particular point, the most that the appellant could look for from the conduct of the district attorney in failing to produce a witness or witnesses under the People’s control, was an inference as an arguable circumstance for the jury to take into consideration, that the witness would, if called upon to testify for the People, have given evidence against the People’s case. The difficulty with the appellant’s contention, however, is that the record discloses no act upon the part of the defendant’s counsel to insist that the witnesses be called, or that they be compelled to testify. Neither does it appear that the appellant in the court below asked the court to charge that any such presumption weighed against the People. The record is barren of any application by the defendant’s counsel for an appropriate instruction that would present any reviewable question to any appellate court. And it further appears from the record that when one of these doctors was called by the defendant’s attorney, he refused to give an opinion as to the defendant’s mental condition, saying: “ I was there as an expert, and I am here as a witness. I am not here to give expert testimony. * * * I decline to give expert testimony, being subpoenaed as a witness.” There are many authorities holding
The point made by the appellant that the court committed error in excluding the testimony of the Christian Science witness as to what she had read to the appellant from a Christian Science manual is without merit, and the action of the court in excluding such testimony- was not an error. The record here shows that everything that was said by the Christain Science witness to the appellant during the course of her treatment of the appellant, and everything that the appellant said to the witness, was received in evidence by the trial court down to the most minute particular.
The record shows that this trial was a long one, and it may be possible that there were minor errors regarding the admission or exclusion of .evidence as the case progressed. The record, as I read it, is barren of any substantial error which in any way-prejudiced the defendant’s rights. In my opinion she had a fair and impartial trial before a judge of learning and ability, who safeguarded her interests in every way. The prosecution contends that the appellant has had the benefit of a trial in which every guaranty with which the law surrounds a defendant in a criminal case was scrupulously observed by the court, counsel and jury, and that the charge of the trial court was a model, marshaling the facts and expounding the law in language that was clear, simple and unaffected, and a charge which could have left no doubt in the minds of the jury as to the issues to be determined. The district attorney points out that it is rare, indeed, that a criminal case of such importance is allowed to go to the jury without a request for instructions or without exception to the charge, and yet the prosecution says that that is what happened in this case, and- that is a fact in itself which is a tribute of some significance to the fairness and entire impartiality with which the trial was conducted. I am in entire accord with the sentiments thus expressed, and even if
The judgment and order should be affirmed.
Concurrence Opinion
(concurring):
In my opinion the evidence in this case was ample to sustain the verdict of the jury. There is no dispute that the defendant killed the decedent, that the homicide was deliberate and premeditated. The defense was that defendant was insane at the timé she shot decedent, and again that defense is narrowed by the concession that at the time she knew the nature and quality of the act she was doing. This left the issue whether at the time she was laboring under such a defect of reason as not to know that the act was wrong. I think her own evidence of her actions at the time of the homicide is positive proof that she knew that the act was wrong. Her insistence on seeing the deceased alone, her escape by way of the operating room after the shooting, her journey to Manhattan instead of to her home in Brooklyn, her telephone messages, and her subsequent meeting with her father and her husband in the street, the consultation not with medical men but with experienced counsel, and her subsequent surrender two days later by her counsel to the district attorney, all these things are incompatible with the claim that she did not know that she had violated the law. It is impossible to read her statement two days after the killing, made to Judge Lewis, then district attorney, voluntarily, by advice of and in presence of her counsel, who took part in the examination, asking her questions, without the abiding conviction that at the time of the crime she was sane, knew what she was doing and knew that it was wrong. A woman more than twenty-one years of age, engaged in business in Manhattan, maintained illicit relations with deceased, a married man, for four or five years, although she knew and visited his'wife and family. She wanted him to go away with her and to marry her in some other State. He refused and she subsequently married her present husband. She testifies that at the outset of their relations deceased assaulted her, but we have only her story as to the inception of the relations, the dead man cannot tell his story, and she voluntarily continued the relations for four or five years. The jury saw her and heard
My brother Manning has discussed the exceptions urged as grounds for reversal of the judgment. I concur with his conclusions. I do not think that it was error to exclude the questions asked the alienist as to statements made by defendant to him some time after the shooting concerning her history and acts prior to the killing. There was no claim of present insanity, it was not claimed that she was insane at the date of her interview with the alienist, and he was allowed to testify to everything he observed concerning her then physical and mental condition. Her narrative to him of her transactions prior to the commission of the crime was, it'seems to me, hearsay. But all of these alleged transactions were before the jury, testified to by the defendant herself and her witnesses, and were embodied in the hypothetical question propounded to the expert, upon which his opinion was founded, and the jury had the benefit of his opinion. As to the appellant’s criticism and exceptions concerning the remarks of the trial justice and the complaint that his maimer of conducting the trial was prejudicial to the defendant, I have to say: There were some incidents which I think might better not have occurred, some remarks which I think had better not have been made, but out of it all there can be no doubt on examination of the record that the learned justice intended to be absolutely fair and impartial as between the prosecution and the defendant. His charge to the jury was not objected to or excepted to. He placed the responsibility for the verdict squarely on the jury. In my opinion the defendant’s- case was not prejudiced by the rulings of the court or the manner of the trial justice. We are directed by the statute (Code Crim. Proc. § 542) to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, and I, therefore, vote to affirm the judgment.
Dissenting Opinion
(dissenting):
I dissent. I think error was committed by the learned trial justice in two respects. The first involves what seems to me an expression of opinion by him indicating that the defendant was neither truthful nor candid, a view that was extremely detrimental
Possibly, we might disregard these incidents if it were not for later occurrences.
When Dr. Kirby, for the defendant, was under examination, we find the following: “By the Court: Q. You several times referred to the defendant as weeping or having wept while you were making examinations. What do you mean by her weeping? A. Crying, shedding tears. Q. Does that mean shedding tears? A. Yes, sir. Q. It doesn’t mean whining as she is doing here in this trialf A. No, sir. Mr. Conway: I object to that statement by the Court and I take exception to it. By the Court: Q. You have heard her whine, haven’t you? A. Yes. Q. I don’t know what you call it. Do you call it whining? Mr. Conway: I take the same exception. A. A moan. By the Court: Q. A moan or whine? A. Yes. Mr. Conway: I take the same exception. By the Court: Q. She has been doing it during your examination and you have heard it? A. In court? Q. Yes, in court, not in jail. A. No, I didn’t hear the moan. Mr. Conway: I take the same exception to each of your Honor’s remarks. The Court: I made no remarks; I asked questions. If you take an exception, then it is perfectly proper. Mr. Conway: I take an exception to each of your Honor’s questions and to what I thought were remarks.”
Second. As to the exclusion of the symptoms, as expressed by the defendant to the examining physicians: The rulings repeatedly made were that the doctors were not to tell what the defendant said to them. These statements were obviously those upon which the physicians based their opinions to a material extent. They were not narratives of past events. They were symptoms of a condition existing at the time of the shooting and which persisted at the periods of the examinations. I think the rulings were erroneous. I do not understand the law to be that an expert witness may not state facts, even though they involve expressions made to him by the defendant while under observation or examination, if his opinion of the defendant’s sanity or insanity is based thereon.
It is thought by some of my associates that as the hypothetical question put to the doctors contained the substance of the'excluded expressions, the rulings ehminating the defendant’s statements to the doctors and which they regarded as symptomatic, were harmless. It seems to me clear enough that if.important factors contained in a hypothetical question are not allowed in evidence the question even though it contained the excluded matter is of no value to the party. From the record, as it unfolds itself to me, the jury may well have concluded that the court was excluding practically all complaints, or symptoms, described by the defendant to her doctors, thus leaving nothing but a barren opinion by them without an intelligence of the facts upon which such opinion was based. But, whatever may have been the jury’s view, I am of opinion that the rulings excluding what the defendant said to the physicians, and upon which they based their opinions of her insanity, were erroneous.
Judgment of conviction affirmed.
Concurrence Opinion
(concurring):
I concur for affirmance by virtue of section 542 of the Code of Criminal Procedure, but am of the opinion that the declarations and statements made by defendant during her examination by the experts were improperly excluded.
