34 Misc. 2d 497 | New York County Courts | 1962
Upon these motions for orders dismissing an indictment accusing them of arson, first degree, defendants contend that their prosecution therefor is barred by the principles of former jeopardy and res judicata
Accordingly, I hold: (1) that the pleas of former acquittal cannot be sustained and the motions to dismiss on that ground are, accordingly, denied; (2) that the prosecution under the arson indictment is not forbidden by the provisions of section 1938 of the Penal Law but (3) that it is precluded by the principle of collateral estoppel and the motions to dismiss on that ground are, therefore, granted. An outline of the facts will put the issues of law in perspective.
Based upon statements allegedly taken from the defendants on that occasion, the theory of their later murder-prosecution was, that while in the lavatory they had noticed a mop standing upside down, in a utility compartment; that at Dowd’s request Roderman handed him a book of matches, one of which Dowd lit and put to the mop until it started to smolder and that both men then returned to the barroom, gathered up a male companion and left the building. Also developed by their alleged statements was a course of after-conduct which, depending upon their original intent, might either have evinced defendants’ consciousness of guilt, or the impact of their realization that a prank had gone far beyond anything intended in its commission.
One was the murder indictment upon which defendants have been tried and acquitted. In each of three counts it accused them of murder, first degree, in that they had caused the death of a named victim by their perpetration of the crime of arson, their commission of the latter crime being alleged in substantially the language of the pertinent arson statutes. By pleading in the alternative, the respective counts were so framed as to
The cases just referred to maintain that in a felony-murder case the murder and the collateral felony are substantively and genetically different offenses and that the underlying felony is not an element of nor “necessarily included” in the murder. In the aggregate of the foundation for the decisions are a common-law fiction and a procedural device conceived and employed, in the latter and more temperate course of the common law, to protect the accused from prejudice. The fiction is said to supply the “malice aforethought” — regarded as essential to guilt of murder in the first degree — through transference, by implication of law, of the ‘ ‘ malicious and premeditated intent” to perpetrate the underlying felony (People v. Enoch, 13 Wend. 159, 174
Their restriction of the idea of “ necessarily included ” crimes to those of generic likeness foils the so-called “ lesser included offense exception ’ ’ to the ‘ ‘ same evidence test ’ ’
By equating the defendant’s “act” with a resulting “ offense ”, it tends to limit the statutory shield (Penal Law, § 1938) to the dimensions of the constitutional safeguard. The statute provides that ‘ ‘ an act or omission * * * made criminal and punishable in different ways by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision” (emphasis supplied). Seven years after its enactment, it was accepted as barring successive prosecutions for elementally ‘ ‘ separate and distinct ’ ’ offenses arising from the same act (People v. Krank, 110 N. Y. 488, 491-493). But more recently, profession of doubt as to the meaning of the word
The applicability of the collateral-estoppel principle to the criminal law is accepted by the New York courts (People v. Brooklyn & Queens Tr. Corp., 283 N. Y. 484, 496).
In its pursuit of that objective, the reviewing court may examine the indictments in each case, the evidence submitted, the instructions to the jury, and the opinions, if any, of the previous court (Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 569, supra; People v. Rodgers, 184 App. Div. 461, 465, affd. 226 N. Y. 671). The reason for a directed verdict may shed light on the matter (Commonwealth v. Di Stasio, 297 Mass. 347, 357-358) and it has been suggested that assistance may he taken from extrinsic evidence (2 Freeman, op. cit., supra, 1455; Jay v. State, 15 Ala. App. 255, 73 So. 137, 138, cert. denied, 198 Ala. App. 691, 73 So. 1000). The content of the indictments in this case has already been outlined. The next inquiry is: What facts were in issue in the felony murder case?
‘1 In issue, ’ ’ in the sense that under the indictment-counts their establishment was essential to the case, but not controverted, were the facts that a fire had occurred, in the nighttime, in a dwelling house (Penal Law, § 220) wherein there were, at the time, human beings {id., § 221, subd. 1) to the knowledge of the defendants {id., subd. 2) and further, that the alleged homicide victim was then one of the occupants of the building and that the fire was the cause of his death. A possible issue of causation was explored by defense counsel in cross-examination of the prosecution’s witnesses, but the effort failed to educe evidence sufficient to make it a submissible issue. All that was developed was that upon discovery of the blaze, some of the occupants
For the support of its view of these facts, the prosecution relied upon the evidence of the admissions made by defendants in the statements taken after the fire. The District Attorney contended that the admissions established that defendants had deliberately set the mop ablaze and, by inference supported by the attendant circumstances, also proved that they intended thereby to set fire to the building as well, assuming —- without conceding — that intent to fire the building was a necessary element of guilt of the arson. On the other hand, defendants con
Upon motions made at the close of the case, the second and third counts of the indictment were dismissed as superfluous, the reason being that in my opinion all three counts charged felony-murder. Defendants’ motion to dismiss the first count was denied with a ruling that the jury would not be permitted to consider the felony-murder but would be instructed to decide defendants’ innocence or guilt of the crimes of manslaughter first and second degrees under that count. However this disposition may be characterized, defendants were thereby acquitted of the felony-murder (People ex rel. Poulos v. McDonnell, 302 N. Y. 89, 91, 92; People ex rel. Bianculli v. McDonnell, 278 App. Div. 782, affd. 308 N. Y. 722; People ex rel. Pulko v. Murphy, 244 App. Div. 382, 384, 385, notwithstanding error, if any, involved in the
1. That a positive intent to set fire to the object is an indispensable element of arson in any of its degrees;
2. That the evidence did not rise to the standard of establishing prima facie, and beyond reasonable doubt, that defendants had any intent to fire the building', assuming, as a fact, that they intentionally set the mop afire;
3. But on the latter assumption, defendants’ guilt of a felony was not established since there was no evidence of the value of the personal property intentionally set afire ;
4. Nor was there any support in the evidence for submission of the case as deliberate and premeditated murder, even if allowable under the form of indictment here employed.
Upon an appeal from the order to be made in accordance with this opinion, a higher court may pass upon the correctness of these conclusions. It would, of course, be farcical for the Trial Judge to suggest that a re-examination of his positions on the law should be blocked by the prior adjudication, but the reasoning thought to support the decisions should be laid open to scrutiny.
1. “A conviction for the crime of arson * * * must be based on a willful criminal intention to set fire to the dwelling house * * * (People v. Bates, 271 App. Div. 550, 552, motion for leave to appeal denied, 332 U. S. 789) or other structure or thing declared by our statutes to be an object of arson. Responsibility for the crime, in its several degrees, is limited to a person who “ wilfully burns, or sets on fire ” any of the specified structures and chattels (Penal Law, §§ 221-223) and to one who “ wilfully and maliciously burns or sets on fire any personal property of another person * * * of a value of twenty-five dollars or over, under circumstances not amounting to arson in the first or second degree (id., § 223). By these statutes and others preceding them, the Legislature modified the common law by defining the crime de novo ” (Shepherd v. People, 19 N. Y.
Fundamentally, “ [t]here is no injustice in holding a person responsible for all the consequences of his guilty act, although they may be more extensive than he intended” (Woodford v. People, 62 N. Y. at 133, supra) but the degrees of his responsibility is proportioned by law to the fairly foreseeable harm. New York has no such provision as was incorporated into English law a century ago (24 & 25 Viet., Ch. 97) (1861) making it a felony to set fire to chattels under such circumstances as that the offense would be a felony if the building were thereby set afire (id., § 7). Yet even there, the courts have held that an intent merely to burn the goods does not justify conviction of the felony. ‘ ‘ There must be an intent, or something, from which an intent may be inferred, to injure the house by burning it ”. Naturally,
2. The ambitendencies of the evidence of intent held it to “ a mere scintilla ” (People v. Ledwen, 153 N. Y. 10, 18) and as a matter of law, it did not come up to the statutory standard in that it failed to establish prima facie, beyond reasonable doubt, that defendants designedly set fire to the hotel. For that reason, the major crime charged was not submitted to the jury (Code Grim. Pro., §§ 390, 410). “ The presence in the record of some evidence is not sufficient to warrant the submission of a criminal case to the jury ” (People v. Jelke, 1 N Y 2d 321, 335). “ In the exercise of their judicial function, courts have often held than in certain situations as matter of law the evidence must be more than usually clear and convincing. The degree of proof required may he affected by whether the testimony is contradicted by other evidence, whether it is consistent, credible or contains elements of suspicion. Moreover all evidence is to be weighed according to the proof which it was in the power of the party to have produced ” (People v. Oyola, 6 N Y 2d 259, 261).
Apart from their undisputed earlier presence in the place of its outbreak — and a doubtful sort of motivation — the only evidence that defendants started the fire intentionally was in the form of their preindictment admissions. But although it was within the power of the interrogators to do so, they asked no direct questions about the actors’ intent. They probed no deeper than motivation and got acknowledgments that defendants had set the mop afire “ to annoy the bartender ” and “ to make some smoke ”.
3. But there was no such evidence and consequently no basis for submission of the case as murder resting on the lowest degree of felony in the arson category (id., §§ 2, 224, subd. 3). For the same reason, the felony grade of malicious mischief {id., § 1433, subd. 1) was also out of the question, although I regarded the act and intent constituents of the conduct as necessarily included in the collateral felony charged in the murder indictment. And since the act established by the evidence was not shown to have amounted to arson (People v. Knatt, 156 N. Y. 302, 305) nor, so far as I have been able to determine, was it otherwise specifically penalized by law (Penal Law, § 1421; People v. Costello, 305 N. Y. 63, 65; Hazak Inc. v. Robertson Goetz Bldg. Co., 298 N. Y. 478, 480) it could be and was submitted as the misdemeanor predicate of manslaughter in the first degree (Penal Law, § 1433, subd. 2; § 1050, subd. 1; People v. Koerber, 244 N. Y. 147, 152-153; People v. Levan, 295 N. Y. 26, 33, 34; People v. Draper, 278 App. Div. 298, 306, affd. 303 N. Y. 653). However, before that point was reached there was a denial of the District Attorney’s request that the case be given to the jury as deliberate and premeditated murder (Penal Law, § 1044, subd. 1).
4. Because even if that theory could have been considered under the form of the indictment in his case
The error, if any, in the decisions and ruling in accordance with this reasoning, is limited to the determination that the evidence did not establish, prima facie, that defendants intended to set fire to the hotel and that a positive intent to do so was essential to their guilt of the felony on which their responsibility for first-degree murder depended. But the verdict of the jury negated other facts on which the success of the subsequent arson prosecution also depends.
First, to prove defendants’ guilt of the arson, the People must show, beyond reasonable doubt, that Boderman and Dowd “ wilfully ” burned or set fire to the hotel (Penal Law, § 221) and, as noted, the evidence that defendants intentionally fired the mop was the means by which the prosecution undertook to prove their criminal agency. But in finding the defendants not guilty of the crime of manslaughter in the first degree, the jury necessarily decided that they had not “ intentionally ” burned the mop.
In the instruction covering the subject, the jury were told, in substance, that they might convict defendants of manslaughter in the first degree if satisfied beyond reasonable doubt that they had committed a criminal homicide (it was not criminal if excusable as defined by law) although without any design to effect death, through their engagement in the commission of a misdemeanor affecting the person or property of the person killed, or of another (Penal Law, §§ 1049,1050, subd. 1). “ [y] ou are therefore to determine ”, the instruction (here abridged) went on, ‘1 the guilt of either or both * * * as a result of «* * * having caused the death by committing * * * a misdemeanor * * * we call Malicious Mischief. Our law provides that any person who unlawfully and wilfully destroys or injures any real or personal property of another, commits the misdemeanor of Malicious Mischief ” (Penal Law, § 1433, subd. 2). The instruction continued: “ You will note * * * that the word ‘ wilfully ’ is used; that means intentionally. In the instance before you that means that before you can convict either * * * of the crime of Manslaughter in the First Degree, you must be satisfied beyond a reasonable doubt that either (or) both * * * intended to injure or destroy any personal property in that closet.” They were told, further, that the law permitted them to “ determine a person’s intent from what happened in the circumstances under consideration. ’ ’ This was part of the charge reread to the jury in response to its request for a redefinition of manslaughter and ‘‘ excusable
In earlier instruction, the jury’s attention had been directed to the defense of excuse, based on accident. Excusable homicide was defined, in substance, as the taking of life by accident and misfortune, in doing a lawful act, by lawful means, with ordinary caution and without an unlawful intent (Penal Law, § 1054) and the jury were advised to acquit of any criminal homicide in the event of reasonable doubt as to whether the homicide was excusable or criminal. Immediately following the charge on first-degree manslaughter they were instructed to consider defendants’ innocence or guilt of manslaughter in the second degree which, in view of the evidence, was defined as a killing, without design to effect death, by an act, procurement or culpable negligence of the accused, not constituting a more serious grade of criminal homicide. (Penal Law, § 1052, subd. 3.) In substance, “ culpable negligence ” was contrasted with ordinary negligence, as involving action taken with knowledge of facts that ‘1 would disclose to a reasonable man the dangerous character of his action. That he does not view his conduct as
Meanwhile, there is no answer that would satisfy the logicians. Whereas it is supposed that the common law ruled the roost in the New York law of crimes only until 1829 it is quite evident that the courts have kept it around to peek at its successors.
Stephen traces the origin of the expression “ malice aforethought ’ ’ back to the late thirteenth or early fourteenth century (3 Stephen, op. cit., pp. 50-51, supra) through Fitz Herbert, according to whom (3 Corone, 284-286) a man who had taken life in self defense avoided the death penalty only if the jury, by special verdict, found that he had, in fact, taken his adversary’s life “in self defense, and not by felony or of malice aforethought ” (emphasis supplied). Unadorned by fiction, the law bluntly warned the wouldbe felon that he would pay with his life for the unintended death of his victim if that were the result of a dangerous felony. There was no need of a fiction to translate into law the lessons gained from experience gathered in the centuries that followed the exposition of the parable of the Good Samaritan (Luke, 10, 23-27). And the law was well-grounded on substantial considerations of public safety, besides proclaiming a rule that the average Englishman would not find it too hard to understand (Holmes, op. cit., 51-56, supra). The fiction, or so Stephen thought, may have originated in Lam-bard’s hyperbole (Eirenarcha, 214) (1610) that a robber is assumed to be disposed to kill, if need be, for the intended gain (3 Stephen, op. cit., 38, 39, supra). Perkins agrees on the source as the cornerstone in the foundation for the different meanings of “express” and “implied” malice (A Reexamination of Malice Aforethought, 43 Yale L. J. 537, 547) (1934). “ This implication of a species of malice which did not exist seems to have been invented for the purpose of bringing cases of constructive murder, so called, within what was supposed to have been the legal definition of the crime ” (Darry v. People, 10 N. Y. 120, 136, Selden, J.) in the era of formalism. Obviously, it Avas an idle formality for, as at common laAv practically all felonies Avere punishable Avith death, either Avith or without benefit of clergy, the imputation of intent actually made no difference ‘ ‘ for it Avas considered immaterial whether a man AAras hanged for one felony or another” (Powers v. Commonwealth, 110 Ky. 386, 413). One rope was as good as another, if it would hold the weight. But the Revdsed Statutes defined criminal homicides in new phraseology intended to dispel the obscurity created by the various uses of the words “ express ”
But the court that decided the Enoch case thought otherwise (People v. Enoch, 13 Wend. 159, supra) and the common law’s domination of the area was maintained by the opinion in the Buel (18 Hun. 487, affd. 78 N. Y. 492, supra) Huter (184 N. Y. 237, supra) Nichols (230 N. Y. 221, supra) and Lytton (257 N. Y. 310, supra) cases. The correctness of the result was confirmed by the common-law tests of indictability and convictability and the doctrine of merger which, in the final analysis, means what the courts say it means in the light of statutory, substantive law (State v. Cooper, 13 N. J. L. 361, supra [1833]). And the common-law tests of the defendant’s susceptibility to indictment and conviction are no longer valid.
In 1936 our joinder practice was liberalized (L. 1936, ch. 328) by amendment of section 279 of the Code of Criminal Procedure. With a moderate exercise of editorial liberty, the statute may be outlined as now providing that, instead of having separate indictments for different crimes, a single indictment may contain counts making separate charges [1] for the same act or transaction, and constituting (A) different crimes, or (B) the same crime alleged to have been committed (1) in a different manner, or (2) by different means, or [2] for tioo or more acts or transactions either (A) connected together, or (B) constituting parts of a common (1) scheme or (2) plan, or [C] constituting crimes of (1) the same character, or (2) of a similar character. Further, if two or more indictments are found in such cases, the court may order them to be consolidated, without regard for any difference in penalties, provided however, that where the charges involve different acts
The defendant is apprised of all of the charges, he cannot be convicted by surprise and he can, of course, identify his former jeopardy. He is not unfairly prejudiced by accusation of different charges for acts or transactions connected together or forming part of a common plan, for in some instances the evidence of their commission is an inseparable part of the case against him and in others, it is legitimately received when its probative relevance and force clearly outweighs any incidental prejudice involved. On the other hand, the prosecution will not fail entirely if the evidence makes out guilt of a crime charged, or “ necessarily included ”, or of inferior degree or of an attempt. In at least one recent case the District Attorney of Nassau County, with a commendable sense of fairness, brought all of the issues to trial under one indictment, with appropriate separate counts. That, however, is a matter of choice, and if the prosecutor elects to wait and see, he can avoid consolidation of separate indictments (by order of the court) by simply asking his Grand Jury for a murder indictment alone. Whether a different course of action should be compelled is a policy decision to be made by the Legislature which would, no doubt, be equally concerned about giving the People one fair try at convicting the defendant by means of a trial free from substantially prejudicial error. The reality of the present is, that the District Attorney is free to decide how he will proceed. Whether he can forestall a former jeopardy plea by a common-law form of murder indictment is another question.
Although there is nothing to prevent execution of the maneuver (People v. Lytton, 257 N. Y. 310, 315) reason opposes its success. Some decisions tend, however, to encourage the idea by their
To the common law we owe the respect due the venerable, but not perfect ancestor of our statutory law. Its precepts help us to understand the intendment of changes since made, but should not be allowed to defeat their purposes. We have put aside the old ideas that a defendant, if shown to have killed, is presumed by law to have done so feloniously and maliciously (arguments for the prosecution, People v. Enoch, 13 Wend. 159, 164, supra),
Order in accordance with decision announced on the first page of this opinion is made herewith.
. 'Pleas of former acquittal were previously entered by leave of the court. Permission to enter formal pleas of res judicata was denied (Code Grim. Pro., § 332) but their tender is regarded as sufficient to present the collateral-estoppel issue for determination, on the merits,
. The entire record of the proceedings in the felony-murder case, from indictment to judgment, including the trial-evidence, exhibits, jury instruction (but not the summation) and the proceedings upon and after the verdict, was, considered in deliberation upon these motions. Financial difficulties caused delay in defendants’ compliance with the court’s direction that the trial record be submitted. Also considered, was the record in the arson case, from indictment to date. The content of the Grand Jury minutes in each ease is known to the court, through prior motions to inspect and dismiss. Both indictments were found upon the same evidence, recorded in a single set of Grand Jury minutes.
. Transcripts of statements (in evidence at the felony-murder trial) elicited by an Assistant District Attorney and recorded by a stenographer, are barren of any acknowledgment of intent to set fire to the structure. The assistant did not ask any direct questions on that subject although, before commencing his interrogation, he had been “ briefed ” by the police as to “ the general story ” that the defendants had told them. As developed in detail on the trial, the “general story” admitted an intent “to make some smoke” and “to annoy the bartender ” but at no time did either defendant say that he intended to set fire to the hotel.
Prior to the prosecutor’s arrival at the police station Dowd’s brother (an attorney) was refused permission to consult with the suspect. He was told that he would have to wait until Dowd had been questioned by the Assistant District Attorney. Dowd’s later effort to talk to his brother was defeated by a police lieutenant’s order to “ get that lawyer * * * out of here ”, but not in those words.
. The indictments were consecutively numbered and handed up the same day, as were two earler indictments thereby superseded.
. Defendants contended that the indictment, drawn in common-law form, was fatally defective for its failure to charge the murder in the language of the statute (Rev. Stat., part 4, tit. 1, eh. 1, § 5,1st ed., vol. 2, pp. 656, 657) which, so far as here pertinent, defined a criminal homicide as murder “ When perpetrated from a premeditated design to effect the death” etc. (subd. 1) and “When perpetrated without any design to effect death, by a person engaged in the commission of any felony” (subd. 3). The absence of “premeditated design” was also
The District Attorney and the Attorney-General urged that if a statutory-form indictment were mandated “ great evils ” would follow from any variance between the allegation of intent and the proof (13 Wend., supra, p. 169) and worsen the “ blemish ” already put upon the law by the “ mild manner in which the laws are administered ” (id., 171, 172 citing 2 Hale, P. C. 193 and 1 Chitty, Cr. L. 171). The court held that the Legislature had not created a new crime, that the indictment need not be in statutory form and that the common-law form continued to be good for all of its former purposes.
. The statute (3 Rev. Stat. [6th ed., 1875] 1022, § 51) permitted joinder of different degrees but the common-law joinder of counts for different offenses “within the same transaction” continued to and after adoption (1881) of the Code of Criminal Procedure. (See, e.g., Kane v. People, 8 Wend. 203, 211 [Ct. of Errors, 1831]; Hawker v. People, 75 N. Y. 487, 489, 490 [1878]; People v. Infield, 1 N. Y. Crim. 146, 147 [Gen. Sess., 1882].) The joinder of “incongruous” and “ repugnant ” offenses was forbidden as involving prejudice to the defendant, but the prosecution was not permitted to fail if defendant’s guilt of a fairly included offense was made out.
On objection raised by motion to quash or to compel an election, the Judge decided whether the offenses were “ indictable ” together and, necessarily, whether they were “ triable ” together. He obviated a surprise-conviction in the first instance by deciding whether a lesser crime, not charged, was included in the major offense actually charged, as a matter of law. If so, defendant was deemed to have been warned of the possibility of his conviction thereof. In the second instance, he controlled the jury’s action by his instruction as to their permissible verdicts in the light of their possible views of the evidence. (See, inter alia, 4 Hawk. P. C. [7th ed.] 29; 1 Chitty, Cr. L., [3d Amer. ed.] 248-254; People ex rel. Poulos v. McDonnell, 302 N. Y. 89, 91; People v. Santoro, 229 N. Y. 277, 281, 284; People v. Miller, 143 App. Div. 251, 256, affd. (on opinion below) 202 N. Y. 618; People v. Klipfel, 160 N. Y. 371, 376; De Dieu v. People, 22 N. Y. 178, 183-184; People v. Connors, 13 Misc. 582, 585; People v. Rynders, 12 Wend. 425, 429-430.)
. Justice Fisher’s allusion to “ crimes not charged in the indictment ” had reference, of course, to separate counts and not to the form of the indictment. Whether the District Attorney can use the common-law form of indictment to foreclose a former jeopardy plea is discussed later (pp. 30, 31, infra).
. Or the “essential ingredient” (“element”) test, as to which (see, among others, State v. Barnes, 29 N. D. 164, 169-170; State v. Smith, 43 Vt. 324, 326-327; see, also, Comment, 21 Louisiana L. Rev., 615, 619 [1961]; Note, 35 Tulane L. Rev., 430, 431 [1961]). The statute referred to in State v. Carlson (5 Wis. 2d 595, 608, 609 [infra]). (Criminal Code, § 939.66) provides that “[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be * *' *: (1) a crime which does not require proof of any fact in addition to those which must be proved for the crime charged” (41 West’s Wis. Stat. Anno., 78).
. Kirckheimer: The Act, the Offense and Double Jeopardy, 58 Yale L. J. 513, 515 (1949).
. The late Justice Holmes, discussing criminal responsibility for foreseeable consequences, reasoned that fairness to the individual only required the lawgivers “ to make a rule which is not too bard for the average member of the community ” (Holmes, The Common Law, p. 57) (1881).
In 1848 the Erie General Term laid down such a rule in the former jeopardy area (fn. 11, infra) in holding that a prior conviction of an assault and battery did not bar prosecution from manslaughter upon the victim’s later death. The average people of the community would not find it too hard to understand from the rule that the “ act ” involved the intent and the deed, including its injurious or deadly quality (“character”). That is precisely the standard of the contemporary New York law of assault as, e.g., when committed by “means or force likely to produce death” or administering a substance “destructive or noxious * * * so as to endanger * * * life ” (Penal Law, § 240); or a “ * * * drug '■* * * dangerous to life or health” {id., § 242 subd. 1); or a “weapon,
. Instant death may come to a cardiac victim from a preparatory threat, offer or use of violence by a would-be rapist or robber. Yet the event of death, “ strictly speaking, does not change the character of the act, but it relates back to the time of the assault and the same act * * * is in truth shown by that event to have been a mortal wound, and the crime * * * is thus shown to be a capital felony * * The acts of the defendants are the same, but the event has shown that those acts were felonious. The event relates back to the acts and gives them a new character, and * * * the prisoners were never guilty of an assault and battery, as the misdemeanor is merged in the higher offense of felony.” (Burns & Cary v. People, 1 Park. Crim. 182, 185, 186, following Commonwealth v. Roby [“Raby”], 12 Pick [29 Mass.] 496).
Conversely, if the violence with intent to commit the felony is not found to have caused the death, does not the failure of proof of the defendant’s agency establish that his “ act ” was assaultive only and that he was “ never guilty ” of the homicide ? The Di Lapo jury, under the instruction of the court, could' have found that the shot was fired in the course of the felony attempt, but that the death did not follow because of the gunshot wound. (People ex rel. Santangelo v. Tutuska, 19 Misc 2d at 310 (supra).
. In addition to the eases collected in People v. De Sisto (27 Misc 2d 217, 258) see People v. Rodgers, 184 App. Div. 461, 465 [1918], affd. 226 N. Y. 671 (supra); People ex rel. Rosebrough v. Casey, 251 App. Div. 867 [1937]; People v. Engel, 8 A D 2d 619 [1959] (dissent), revd., 7 N Y 2d 1002; People v. Dreares, 15 A D 2d 204, 206 [1961]; People v. Gans, 33 N. Y. Crim. 179, 180, 183 [1915]; People v. Parelli, 93 Misc. 692, 693-694 [1916]; People v. Rogers, 102 Misc. 437, 442 (same ease as 184 App. Div. 461, supra) [1918]; People ex rel. Kwiatkowski v. Trenkle, 169 Misc. 687, 693-696 [1938]. In People ex rel. Todd v. Brennan (254 App. Div. 866) the pretrial ruling in People v. Kleinman (168 Misc. 920) was held to he an encroachment upon the powers of the trial court (co-ordinate jurisdiction).
. “ The doctrine of res judicata, by which a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot after-wards be disputed between the same parties” (15 Am. Jur., Criminal Law, § 37; Anno: 147 A. L. R. 991, 992).
“ The doctrine which operates, following a final judgment, to establish conclusively a matter of fact or law for the purposes of a later law suit on a different cause of action between the parties to the original action” (Polasky, Collateral Estoppel — Effects of Prior Litigation, 36 Iowa L. Rev. 217, 218 [1954]).
Its extension to a prior adjudication on a question of law involves policy-considerations, including its potential for the perpetuation of error, especially in criminal causes. Only a few jurisdictions ■ — of which New York is not one — have undertaken to give the State a right to appeal from a judgment of acquittal induced by error. (See Mayers & Yarbrough, Bis Vexari, etc., 74 Harv. L. Rev. 1, 8-14, 32, 33.) The instant case may — and Green v. United States (355 U. S. 184) does- — illustrate the possibility.
. “A negative answer can usually be found by the court” (Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 Iowa L. Rev. 317, 334) (1952); “ the solar plexus of Res Judicata Criminal ” (Gershenson, Res Judicata in Successive Criminal Prosecutions, 24 Brooklyn L. Rev. 12, 32 [1957]; 25 Brooklyn L. R. 33 [1958]).
. They created a draft by opening a door whereas the trained fireman’s standard procedure (under the same circumstances) is to maintain a closure so as to confine the fire.
. Some courts reject the offer of the evidence when, if received, it would not establish the intervention of an independent cause (see, e.g., Dumas v. State, 159 Ala. 40, 44 [1909]) and others countenance its rejection (Commonwealth v. Williams, 304 Pa. 299, 302 [1931]; Hollywood v. State, 19 Wyo. 493, 513, 514 [1912]) but qualify the ruling with an admonition that as a matter of discretion, a “liberally wide latitude” should be allowed (Hall v. State, 199 Ind. 592, 604-605) [1928]).
. A statement by one of the defendants that they had gone to the Grassy Point to “break some backs” had reference to their intention to deal with any who might attempt to maintain the territorial dominion asserted the prior week. However, no such person was found in the tavern on the night of the fire.
. As will later appear, the manslaughter, first degree, based upon a misdemeanor, was submitted to the jury upon the same view of the necessity of an affirmative intent.
Reference to “ specific intent ” is avoided because it tends to blend particular motivation, as a cause, with intent, as the effect. Bishop’s treatment of intent element (2 Criminal Law, p. 10 [9th ed.]) in that vein was adopted in State v. Colgate (fn. 19, 31 Kan. 511, 518, infra).
. In the Fanshawe ease part of the charge posed the question: “Did the defendant wilfully, that is intentionally, hum or set on fire * * * the premises * * * ? ” (137 N. Y. at p. 70). From the opinion below (65 Hun 77) it appears that a requested charge was amended so as to tell the jury that “If * * * the building * * * was burned or set on fire, with no intent on the part of the defendant to bum or set the same on fire, it is not arson, and no conviction can be had under the indictment” (p. 92). In accord with the idea that “wilfully” means “intentionally,” see People v. Katz, 290 N. Y. 361, 365: “ as the statute reads, the requirement as to intent is eo-extensive with the act prohibited.” (Contra, see State v. Colgate, 31 Kan. 511, 518, 520.)
The case that probably brought about amendment of the statute (I. N. R. L. 407) so as to include the “set on fire” verbiage (2 R. S. 657, see. 9) (1st ed.) was People v. Cotteral, 18 Johns 115 (1820) in which the court staved off a death penalty by holding that the defendants had sustained their burden of showing that “it was no part of their intention to burn the gaol” (p. 120). (See, also, State v. Mitchell, 27 N. C. [5 Ir. L.] 350 [1845]; People v. Long, 2 Edm. Sel. Cas. 129 (1849); Jenkins v. State, 53 Ga. 33, 35 [1874].)
. The analysis proceeded on the greatest effect that could reasonably be given to the admissions. Even at that, Roderman’s knowledge of and concurrence in Dowd’s (admitted) purpose was not apparent in the content of the recorded statements. When the case was resubmitted to the Grand Jury, the weak link in the chain was strengthened by police testimony of further verbal admissions by Roderman.
. He parked Ms cab under the building, near the lavatory, at about that time. It was shortly afterward that the fire was detected.
. Each count alleged in detail, facts amounting to felony murder and concluded with what was, in effect, a plea of “ transference of malice,” by further alleging, in substance, that in consequence of the acts specifically pleaded, defendants had killed the victim willfully, feloniously and of their malice aforethought. It did not, however, go on to allege that the deed was contrary to the peace and dignity of the People of the State of New York, etc.
. Snyder, The New York Penal Law and Theories of Punishment, 21 Brooklyn L. Rev. 12, 14 (1954).
. As late as 1877 an Irish court was divided on the imputation of “ malice ” to a sailor who had accidentally set a ship afire while trying to get an unauthorized ration of rum, by candlelight, from a cask in the hold (Regina v. Faulkner, 13 Cox C. C. 550).
. In view of the expert assistance given to the Legislature in the drafting of the statute, it may be assumed that the lawmakers were not unmindful of the nuances so important to the philosophers. Since they went ahead and used the word anyhow, it seems equally fair to assume that they simply declined, to he confused as to its meaning. The aet-intent-coneept of the Erie General Term has already been noted (footnote 11, supra). The Burns and Cary ease was not left to be buried in the archives (People v. McCloskey, 5 Park. Crim. 57, 59; People v. Cramer, id., 171, 178 [1860]; Canter v. People, 2 Tr. Ap. [36 N. Y.] 1, 3, Abb. Pr., N. S., 21, 27, 38 How. Pr. 91, 93 [1867]; Buel v. People, 18 Hun 487, 493 [1879], supra). The decision thought to have been instrumental in the amendment of section 444 of the Code of Criminal Procedure mentioned
. Of course, if a prima facie case is marie out against him he must, as a practical matter, come forward with enough evidence to at least bring his responsibility into reasonable doubt (People v. Sandgren, 302 N. Y. 331, 334).
. See Collings, Negligent Murder, Some Stateside Footnotes, etc., 49 Cal. L. R. 254, 287 (1961).