191 A.D. 355 | N.Y. App. Div. | 1920
Without reviewing the facts it is sufficient to say that the evidence amply supported the conviction. The appellant, with commendable brevity, urges two points only as indicating errors in the charge. In the course of his charge the learned presiding justice used the following language: “ Now, nobody is hurt if I make any mistake in stating what the law is, because every word that I utter is being taken by the stenographer, and if I make any misstatement at all, I can be reviewed and everything that I say can be reviewed by another court. So there can never be any harm done if I make a mistake in the law.” The defendant, having excepted to this, calls attention to the case of People v. Esposito (224 N. Y. 370), where the conviction was reversed upon the ground that the defendant did not have a fair trial. In that case the district attorney, during his argument, used the following language: “ I wish also to call your attention here to the fact that this defendant can appeal from this decision of yours to the Court of Appeals but the prosecution cannot.” Of this the Court
It is one thing to say to the jury that the defendant has a right to appeal from a judgment of death to the Court of Appeals, but that the prosecution cannot, thereby suggesting that the Court of Appeals can correct any error which the jury may make in their deliberations, and that the function of that court is practically the same as that of a jury in deciding questions of fact as well as law, and it is an entirely different thing to tell the jury that an error of law made by the trial court can be corrected on appeal. The charge of the learned court was calculated to impress upon the jury the difference between their decision on questions of fact and his decision on questions of law and to induce them to accept -without question his instructions on matters of law; for if the jury thought that there was no review of these instructions they might be inclined to reject the court’s charge and substitute their own notions of what constitutes the law.
In defining the crime of manslaughter in the first degree the court said: “And, then, manslaughter in the first degree is this: That is the doing of some act which results in the death of a human being, but when you do it without any intent of killing him at all and when you do it with the use of a dangerous weapon. That constitutes manslaughter in the first degree.”
The defendant claims that the charge was erroneous in omitting from the definition the words " in the heat of passion.” Section 1050 of the Penal Law defines manslaughter in the first degree as follows: “ Such homicide is manslaughter in the first degree, when committed without a design to effect death: * * * In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.”
The judgment of conviction should be affirmed.
Jenks, P. J., Mills, Putnam and Kelly, JJ., concur.
Judgment of conviction affirmed.