Lead Opinion
I have been constrained to reach a different conclusion from that held by Judge O’Brien. I agree with him that as the guilt of the defendant was submitted to' the jury on both claims of the People, first, that the deceased was killed with a deliberate and premeditated design to effect his death, and, second, that he was killed by the defendant while the latter was engaged in the perpetration of a felony or an
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attempt to commit one, if as to either claim the evidence was insufficient to justify the submission of the question to the jury the conviction must be reversed, since it cannot be known on which ground the jury based its verdict. But I take issue with my associate on the proposition that there was any such inconsistency between the two claims as rendered it improper to' submit both to' the jury for determination. Thera was but a single crime charged in the indictment against the defendant, that of murder in the first degree, and the only issue to be determined by the jury was whether the defendant had ■been guilty of that crime'. Under our statute (sec. 183, Penal Code), so far as applicable to the case before us> proof either that the defendant killed the deceased with a deliberate and premeditated design to1 effect his death, or while the defendant was engaged in the commission of a felony or an attempt to commit a felony, though without any design to' take life, established his guilt of the crime charged. “ It is not necessary. that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence1. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other.” (Murray v. N. Y. Life Ins. Co.,
Uor is there the theoretical inconsistency between the two claims of the prosecution that has been assumed. It is not correct to1 say that if the offense was committed in one way it could not have been committed in the other. It is true that *185 in the definition of the second manner in which the crime may be committed the statute reads: “ Without a design to effect death.” But this does not render absence of intent an essential ingredient of the offense, such as the killing or the commission of the felony, elements which the prosecution is bound to prove beyond a reasonable doubt. “ Without a design to effect death ” is to be interpreted as meaning, regardless of whether there was a design to effect death or not. This rule applies in a certain measure to' the definitions of the various grades of homicide so far as those definitions prescribe the absence of an element which, if present, would constitute a higher degree of crime. ' By section 184 of the Penal Code murder in the second degree is defined to be. the killing of a human being with the design to effect the death of the person killed or another, but “ without deliberation and premeditation.” By sections 189 and 193 the offense is manslaughter when committed “ without a design to effect death.” It is not necessary, however, that the prosecution should prove beyond a reasonable doubt in the first case that there was no deliberation, or in the second that there: was no> design to effect death. On the contrary, the rule is that where there is reasonable doubt in which of several degrees of a crime the defendant is guilty he must be convicted of the lowest degree. (Code Crim. Proc. sec. 390.) So an acquittal on the merits on an indictment for manslaughter or for murder in the second degree: will bar a subsequent prosecution for murder in the. first degree1 (Wharton on Homicide, sec. 898; Penal Code, sec. 36), which would not be the law if a conviction under either of such indictments could not be sustained by proof establishing the higher offense.
The direct evidence, including that of the witness Harris, who, as has been said by my associate, was sufficiently corroborated, proved circumstances which clearly established that the deceased was shot by the defendant and his associates, without relying on their subsequent statements to that effect.. At about half-past one in the morning of the homicide the
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deceased and the witness Warner were standing at the comer of Main and Grand streets, in the village of Cbhleskill, when, as that witness testifies-, they saw a party of four or six men, whom he could not identify, pass up1 Grand street. He then left the deceased, went to his room and was preparing for bed when he heard the sound of shooting, several shots. He went to the window and heard the barking of a dog. The noise appeared to come from the store of one Borst on Main street, a short distance from the place where he had been standing with the deceased. He immediately went to this store and found the body of the deceased there and several of the villagers present Harris testified that the defendant and his associates turned off Main street and went towards the spot where the body of the deceased was found; that a few moments afterwards they returned, and that the defendant had a wound in his hand from which a bullet was proved to- have been subsequently extracted, and that Hinch, another of the party, had a wound in the shoulder, from which, also, a bullet was after-wards- taken. A hammer which one of the party had obtained from the tool chest which they had broken open was: found atBorst’s store a few feet from thei place of-the homicide and the chisels and other -tools which they had taken were found in the vicinity. Quite a fusilade had occurred and bullets had entered the windows of ■ neighboring stores. Ho other persons except the defendant and his associates- were seen in the vicinity of the spot where the homicide occurred. After the shooting a party of several persons was observed - by the witnesses running away from that place.- From -these facts the inference seems irresistible 'that the encounter in which the life of the deceased was taken occurred between him and- the men who but a few moment® before had gone towards the scene of the occurrence, the men whose tools -were found at the spot or in its vicinity and two of whom bore evidence on their persons in the shape of bullet wounds that they had taken part in a recent affray.- Indeed, it is not strenuously con
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tended that the proof did not warrant the jury in finding that the deceased was shot by the defendant or his associates. The claim is that the evidence was insufficient to' establish the premeditation and deliberation necessary to' constitute murder in the first degree. It seems to' me that the real question in this branch of the case is rather whether the jury was justified in finding that the killing of the deceased was criminal than the degree of the crime. Though the statement of the defendant or one of his associates to' the witness Harris, “ that they unexpectedly met a policeman and he fired at them and then they fired at him, and didn’t know whether they hit him or not,” was, as I have said, unnecessary to establish the connection of the defendant with the homicide, still, as it was put in evidence by the prosecution, the. defendant was entitled to have it considered by the jury. The jury, however, was not required to' believe it. The jurors could accept part and reject part; they could believe .that the defendants shot at the policeman and disbelieve the statement that the policeman fired first. (People v. Van Zile,
I think the evidence was also sufficient to justify the jury in finding that the defendant and his associates were engaged in an attempt to commit a felony, to wit, a burglary, when they took the life of the deceased. “ An act done with an intent to commit a crime, and tending but failing to' effect its commission, is1 an attempt to commit that crime.” As observed by Mr. Wharton (Crim. Law, sec. 2696), mere intent is not the subject of penal action and an overt act is essential to
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impart to the intent criminal responsibility. The question of what overt act is sufficient to- constitute an attempt to commit a crime has been the subject of much discussion by both text-writers and courts, and of some conflict in the decisions. In the early English cases the view seems to have been adopted that to- constitute an attempt the overt act must be the final one towards the completion of the offense and of such a character that, unless it had been interrupted, the offense itself would have been committed. The decisions in some of these cases seem to- have been based on the phraseology of the particular statutes under which the indictments- were framed. This extreme doctrine has- not heen accepted in this country, certainly not in this State. Thus it has been held that where a prisoner put his hand into- the pocket of another, intending to take its contents, it was an attempt to- commit larceny, although there may have been nothing in the pocket to. steal. (People v. Moran, 123
N. Y. 254;
Commonwealth v. McDonald,
The objection to the sufficiency of the indictment is disposed of in the opinion of Judge O’Brien. There are no other questions raised on this appeal that require discussion. The case was submitted to the jury by the learned trial judge in a charge eminently fair, in which attention was called to every rule of law which safeguards the rights of a person on trial for his life or liberty. The jury has found the defendant guilty. I believe that verdict to be justified by the evidence, and that this court is not called upon to interfere with it.
The judgment should be affirmed.
Dissenting Opinion
The defendant has been convicted of murder in the first degree upon an indictment, charging him with having, on the 27th day of ¡November, 1900, shot and killed Matthew Wilson, a policeman, with the deliberate and premeditated design to effect his death.
About 2 o’clock on the morning of the day above named, Wilson was found dead upon the stone steps of a store in the village of Cobleskill, the body resting upon a platform or stoop in front of the store, which was reached by two stone steps. *193 He was evidently standing upon the platform when killed, as the body was found there, with the feet resting lower down upon the steps.
It appeared upon the post mortem examination that there were four wounds upon the body inflicted by bullets fired from a pistol or revolver. One of the bullets passed through the left wrist, another was found in the left arm about two inches below the shoulder. This was a mere flesh wound and the bullet was readily extracted. The third wound was in the shoulder directly back of the scapular, and had penetrated deep in the muscles of the right shoulder from behind. None of these wounds was serious, or of a character to- produce death. The bullet that produced death entered the right side at the seventh rib from behind, obliquely passing through the rib and the middle lobe of the right lung, thence through the pericardium of the heart to the right auricle and lodged in the muscles under the left nipple, obliquely from backwards, forwards and upwards, as described by the medical testimony. The bullet when located was four or five inches higher up in the body than the point where it first entered. This, upon all the testimony, was the fatal wound, sufficient to produce instant death, and the indictment is framed and the prosecution based upon the theory that the defendant either feloniously fired the shot himself, or is legally responsible for the act if committed by some one else.
The People attempted to connect the defendant with the homicide by circumstantial evidence and by the testimony of an accomplice. There is very little information in the record with respect to the defendant’s antecedent history, until we come to the 26th of November, 1900, the day prior to the homicide, when he and five other persons were at the house of a Mrs. Peters in Albany. One of the other persons was a man named Harris, who was the accomplice that testified at the trial under an arrangement with the district attorney made *194 while he was in prison charged with this or some other offense'. The defendant was identified as one of the six persons present at the house referred to by the woman who. kept it and by her two daughters. The fact of his. presence there is sufficiently established without the testimony of Harris, but what these persons were doing, or why they were together on that occasion, is not made very clear by the inmates of the house. It seems that three or more of the party took meals at the house, and the woman who1 testified, or at. least one of them, said that she heard some conversation among them about a bank, the inference sought to be drawn from this testimony being that they were consulting upon the subject of robbing some bank. The jury, we think, could have found that some or all of the party were criminals., or at least that they were about to commit some crime, the precise nature of which is not clearly disclosed by the evidence. But their subsequent movements, culminating in the death of Wilson, so far as there is any direct testimony upon the subject, must rest almost wholly upon the testimony of Harris, the accomplice.
He tells us that he was present at the meeting in Albany; that he and two other persons hoarded or took meals at the house where they were, but did not disclose the plan of action agreed upon, if any; that at about 1 o’clock in the evening of the 26th of November the whole, party boarded a freight train that ran from Albany to Gobleskill, about forty-five miles distant. It appears that they rode on top of the cars' as tramps, and were seen by the conductor, who1 did not interfere with them, so. far as. appears. They had bottles of whisky, which they imbibed quite freely on the journey, and the proof shows, or tends to show, that some or all of them, including the defendant, were drunk. The train stopped some time at the first station after leaving Albany, and the party all got off, but boarded the train again when it was. about to start, and it arrived at Gobleskill about 11 o’clock. Harris relates the movements of the party from that time substantially *195 as follows: After landing they walked on the railroad to a small shanty, broke the door, went in and remained there until about 1 o’clock in the morning smoking and drinking. Then they went to a coal house on the railroad in process of construction. There they broke open a tool chest, from which they took some chisels and tools. Then following the railroad, they went to a section shanty and, finding it locked, broke it open and took from it an iron crowbar. Harris says that he carried the crowbar, the defendant a hatchet, and some of the others the chisels, and they proceeded to the main street of the village. According to Harris, when they all got off the train at the station, they spoke of robbing the post-office, which was on the main street, opposite the store where the shooting occurred. Before reaching this point on the street Harris says he and another of the party separated from the rest, and he threw away the iron bar upon a grass plat, leaving the others with only a hatchet and chisels. From this point Harris says that he has no personal knowledge of what occurred until the party was again united after the shooting, but he testified that he heard the firing, and when he and his companion were joined by the rest they, including the defendant, told him that they had suddenly and unexpectedly met the policeman, who ordered them to1 stop, which order they disobeyed, whereupon he commenced to> fire at them and they returned the fire. He did not, as he says, see the shooting, and, of course, wasi unable to identify the person who fired the fatal shot.
The testimony of Harris, the accomplice, so far as it relates to the journey of the party on the freight train, the arrival at Cobleskill, the breaking into the coal house and shanties, the procurement of the tools and crowbar, and the flight of the whole party across the country, their concealment in barns during the night and other incidents which he related, was corroborated by abundant proof; but his separation from his associates at the critical time and his absence from the immediate scene of the homicide, and the alleged statements or *196 admissions made by his associates after the shooting as to the circumstances’ under which it took places all rest upon his own statements. It was shown that the defendant was shot in the hand hy a bullet which was subsequently extracted, and another of the party in thei shoulder. The dead policeman’s revolver was found near his body with five of the six chambers bearing evidence of having been recently discharged, and it is conceded that he could not have used it after he had received the fatal wound.
These are the material facts- upon which the conviction must stand or fall. The case was submitted to1 the jury in two aspects. The jury was permitted to find that the defendant fired the fatal shot with a deliberate and premeditated design to effect the death of the person killed, or procured, aided, counseled or advised the act which resulted in his death. The casei was also submitted to the jury upon the theory that they might find from the evidence that the defendant, without deliberation or premeditation, lulled the deceased, or aided or abetted in the commission of the homicide while attempting to- commit a- felony under the last clause of the statute. We cannot know upon which of these theories the jury based the verdict-, and, therefore, the prosecution must show that the proof justified the court in submitting the case in both aspects, and that there was evidence upon which the jury could find that the homicide was committed while the defendant was engaged in an attempt to commit a felony and that the act was the result of deliberation and premeditation. The learned counsel for the defendant contends that these two- theories of the case could not have been submitted to the jury upon a common-law indictment, hut that the facts should have been alleged in order to bring the case within that danse of the statute which declares it to' be murder in the first degree to commit the homicide when the accused is engaged in the commission, or in the-attempt to commit a felony. The- authorities do not support
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this contention. The law is now settled that under an indictment in the common-law form the prosecution may prove facts to bring’ the case within any of the provisions of the statute defining murder in the first degree. (People v. Giblin,
In one of the barns where defendant and his confederates' were concealed during their flight from' the scene of the homicide a bottle of nitro-glycerine was found, which was evidently left there by the party, and the possession of this substance, with the tools and implements already described, proved, as is contended, that the party had planned and were about to commit a burglary when they came upon the deceased. This conclusion is, doubtless, supported by the evidence, and the jury could have found that the design of the party was to break into the post-office, but, when the firing commenced, Harris, the accomplice, according to his statement, had separated from the rest and had thrown away the crowbar, their most formidable instrument for use in the commission of this intended burglary. While the parties still had the chisel and the hatchet, and so far were prepared to1 make the attempt to break into0the building, it is certain that no overt act was committed to that end, and the question is- whether the purpose and intent of the parties had yet reached such a stage of action as to constitute an attempt to' commit burglary within the meaning of the statute defining murder in the first degree. Of course, if they had entered the building, and, while there, or in attempting to escape, had killed the watchman, although in self-defense, or in order to save their own lives, plainly the act would be murder in the first degree; and if there is no substantial distinction between that case and the one at bar,
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them, it must follow that it was properly submitted to the jury. Whether the defendant and his associates were at the time' of the homicide actively engaged in an attempt to' commit a felony, within the meaning of the statute defining murder, is a question that seems to me not entirely free from doubt. ¡None of the cases cited on this point by the learned counsel for the People are quite like this. Some of them, it is true, bear a close resemblance’ to it, while others differ widely. In none of them was the question involved with respect to what acts constitute an “ attempt to commit a felony ” within the meaning of the statute defining murder. (People v. Lawton,
The proof in the case does not show that the party had any well-defined plan in mind when they left Albany. It does show, or tend to- show, that some or all of them were more or less intoxicated, and while that does not excuse the act it bears upon the question of intent, deliberation and premeditation. It is- evident enough that they were not professional, or at least skilled burglars-, since if they were- they would not be likely to trust to- the chance of procuring the necessary tools- for their purpose- at the place where their operations were to be carried on, or to- throw away the crowbar before they had reached the building that they had designs upon. They were criminals, no- doubt, of some grade or capacity, but the whole transaction from beginning to- end tends- to- show that they were of an inferior order, without much skill, experience or ability. They were really a band of tramps, probably intoxicated, bent upon some mischief, but precisely what it was it is very difficult to- gather from the proofs-. Aside from the testimony of the accomplice "as to- the talk among themselves-, there- is- as- much reason to- believe that they had designs upon the bank or any other building in the vicinity as upon the post-office: Since there is no- proof in the casei to- identify the person who fired the fatal shot, the defendant’s legal responsibility for the homicide must rest upon the- fact that he was one of a party that had entered into a joint agreement, conspiracy or confederacy to- take- human life if necessary in aid of some common criminal design. In order to- hold the defendant responsible for the acts- or statements- of the- rest of the party or any of the-m the proof must come up to- this *200 standard. Passing for the present the question whether the case was properly submitted to the jury on the theory that the homicide was committed while the defendant and others were engaged in an attempt to. commit a felony under such oireumstances as to render any one of the party responsible for the acts or statements of the others, I do not think that the evidence was sufficient to- warrant a finding that the killing of the deceased was the result of a deliberate and premeditated design on the part of the defendant to effect his death. That intent and design cannot, upon the evidence, be imputed either to the defendant personally or to any confederacy of which he was a member.
The evidence certainly warranted the jury in finding that the defendant was present and acting with his associates, and that they were engaged in some criminal scheme that failed of execution, but resulted in the homicide. This policeman, engaged in the performance of his duty, met his death by the act. of one or more of a combination of criminals, and courts ought not to be astute to. relieve any of them from the punishment which the law prescribes for such a wicked act. At the same time the defendant is entitled to a fair trial and to the benefit of the rules of law applicable to criminal procedure. The difficulty with the case is that we cannot affirm the judgment without holding that the proof sustains two propositions of fact that apparently are somewhat in conflict with each other. The one is that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or counseled, aided or abetted the killing with a like design. The other is that, without any design to' effect death, he killed the deceased or counseled, aided or abetted the killing while engaged in the commission of a'felony. The criminal act resulting in death is different in nature and character under the two provisions of the statute, and while the People had the right to give proof under the indictment of all the facts, yet when the proof was all in it could not establish *201 both propositions. If the proof tended to show that the deceased was killed without any design to effect death, but while the parties were engaged in an attempt to' commit a felony, it necessarily excluded the theory that he was killed from a deliberate and premeditated design. It would seem to follow that the case should have been submitted to the jury on one theory or the other, and not upon both. But while conceding that both theories should have been established by proof, it is contended that both were properly submitted to the jury, since half the jury might have accepted one theory and the other half the other theory. I am unable to' appreciate the force of the reasoning in support of this proposition. If it be correct it must follow that the chances of a conviction are very much improved by the introduction of various theories in support of a single charge. If, for instance^ it were possible" for the prosecutor to try the case upon a dozen theories and a single juror could be induced to assent to each theory, the whole body could unite in a verdict of guilty, although no one theory could command the assent of more than a single juror. This method of procedure, with all respect, strikes me as very much like what has long been known in legislative parlance as log-rolling, the art of which consists in framing a bill with numerous separate or independent provisions, none of which would pass- upon its own merits, but each of which is made attractive enough to command a certain number of votes, which, being united, are sufficient to- pass the bill. The Constitution contains some provisions intended to suppress this vice in legislation, but it was never supposed that it could be introduced into the jury room and applied in a capital case. The argument in favor of it ought not to be accepted unless the reasons and authority in favor of it are clear and conclusive, and I am bound to say that, in my opinion, they are not.
The case was submitted to the jury upon the theory that there was evidence to support two conflicting propositions of fact, namely, that the homicide was committed from a delib
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erate and premeditated design to effect the death of the person killed and that it was committed without any such design or any intent to effect death, but when the accused was engaged in an attempt to commit a felony. When a capital case is submitted to a jury upon two different theories concerning the facts, the evidence must be of such a character as to sustain both. If either theory is not supported by evidence a verdict based upon the whole case cannot be permitted to stand. Of course a homicide may be committed by one engaged in an attempt to commit a felony, with the intent to kill and with deliberation and premeditation, and then all the elements constituting murder in the first degree are established, but in this case all we know and all the jury could know concerning the circumstances of the shooting is what Harris, the accomplice, says', that some one of the party admitted to him after it took place, and that was. that the party, when walking in the street, came upon the policeman suddenly and unexpectedly and he commenced to fire at them and then they fired at him and the fusilado resulted in the death of the deceased. The responsibility of the whole party of six men for the death of the person killed isi, upon the facts, the same as to each one of them. If this defendant is guilty of murder in the first degree, so are all the others. Ho intent, deliberation or premeditation can be imputed to the defendant that is not to be imputed to the whole body. The proof must show that at some appreciable space of time prior to' the firing of the fatal shot the defendant and his associates', confederating together, and acting in concert, formed a deliberate and premeditated design to effect the death of the person killed, or some human being. (People v. Wilson,
In this- ease there is proof of the intention, and proof that the party had in their possession some of the instrumentalities for the commission of burglary, even after the crowbar had been dropped out, but they had not yet arrived at the building and had made no- physical attack upon it, or committed any overt act towards- entering it. Aside from the fact that they were near to- the- building, they were practically in the same position that they were- when they started from t-he coal house, or t-he shanty near the railroad track. On the whole it see-ms- to- me that the case is too- dose and doubtful t-o warrant us in affirming the conviction upon the record now before us. If we are to- believe the accomplice; he and another of the party threw away the crowbar, the most formidable- instrument that the- p-arty had to- break into- a building, and separated from the rest. There is- no proof of any act- on the part of the- defendant or the others- constituting an attempt to-break into the post-office. Whatever may have been s-aid among themselves- by any of the- party as to- their purpose or intentions-, there is no- proof that the deceased heard or knew anything about it. The elements that constitute1 murder in the first degree have to- be supplied by inferences and presumptions that are scarcely permissible in a capital case: Aside from the testimony of the- accomplice- as- to- the- admission by some one that the deceased commenced to- fire first and that the p-arty or some- of them fired in return, there is no- proof of the facts- and circumstances- under which the crime was committed. Whether it was preceded by the intent to- kill and by deliberation and p-remditation, those essential elements in the crime- of murder in the- first degree, is- a matter of mere inference which in this ease is little better than speculation. These- elements of the crime were- not established beyond a rea *205 sonable doubt, in my opinion, and hence there should be a new trial.
Gray, Martin, Vann and Werner, JJ., concur with Oullen, J.; O’Brien, J., reads, dissenting opinion; Parker, Ch. J., absent.
Judgment of conviction affirmed.