220 A.D. 528 | N.Y. App. Div. | 1927
The defendant has been convicted of the crime of manslaughter in the second degree and sentenced to fifteen years’ imprisonment in a State’s prison. The indictment is in the common-law form for murder in the first degree for the killing of Nellie
A brief outline of the facts is as follows: Nellie McCarthy died on the morning of Sunday, July 25, 1926, from wood alcohol poisoning. The defendant’s connection with her death depends on a chain of events. On Tuesday or Wednesday, July twentieth or twenty-first, the defendant, who was engaged in the business of selling alcohol and other intoxicants surreptitiously, sold to another person named Maischoss, who was in the same business, five gallons of what purported to be grain alcohol but what was in fact a substance known as methanol, a synthetic wood alcohol, unquestionably poisonous. Maischoss mixed some of the liquid with other materials— flavoring, glycerine, magnesia and water — to concoct what he called gin, and put it into bottles which had Gordon gin labels on them. On Friday evening Maischoss sold a quart of this gin to Charles Murphy. Murphy stopped to get this at Maischoss’ home. At that time Murphy was one of a party of five, including, beside himself, Nellie McCarthy (the deceased), a woman named McGovern, who lived in the same apartment with the deceased, and two men, one of whom was named Lennon, and the other of whom is unidentified in the record. They were on their way by automobile to some point on the shore of Lake Erie where they intended to go in bathing. Previous to starting on this bathing trip, Mrs. McCarthy, Lennon and Murphy had eaten supper together at the McCarthy apartment and had all three drunk at least a small quantity from a bottle labeled gin which Lennon had got at Maischoss’ home on Thursday night. According to Maischoss’ testimony he had no gin at that time except such as he had made up from the alcohol purchased by him from the defendant. On Friday evening when the party reached the lake shore, Mrs. McCarthy, Lennon and Murphy went in bathing. Miss McGovern and the third man did not. The bottle which Murphy had purchased from Maischoss was left in the back of the motor car while the bathers were away. When the bathers returned to the car Murphy noticed that the bottle had been opened and a small quantity of the contents was gone. Murphy then took a small drink of the contents of this bottle. Murphy testified that at that time he was sure Mrs. McCarthy drank some of its contents. The party returned to the McCarthy apartment and the bottle of gin
The outline of this portion of the case is sufficient to show that the jury were warranted in finding that the wood alcohol which Mrs. McCarthy drank and which caused her death was part of that which Maischoss purchased from the defendant on Tuesday or Wednesday, July twentieth or twenty-first.
We now turn to the facts relating to the defendant’s acquisition of the alcohol sold to Maischoss, to his knowledge of its character, and to his acts upon learning of its poisonous quality. On Sunday, July eighteenth, a man named Sapowitch came to the defendant’s home and sold to the defendant ten drums of 110 gallons each of what Sapowitch then stated to the defendant to be German grain alcohol. The defendant himself testified that at the time of the purchase he was not only assured by Sapowitch that the product was German grain alcohol, but that Sapowitch had with him what he claimed was a sample and also a chemist’s certificate that the liquid analyzed did not contain wood alcohol and was “ O. K.” Defendant before purchasing diluted some of the sample with water, smelled and tasted it and testified that it “ smelled perfect.”
The question most earnestly litigated at the trial related to the day on which the Maischoss purchase from the defendant of five gallons was made. The sale and delivery without question occurred between one and two o’clock in the afternoon. The People’s witnesses swore that it was on Wednesday; the defendant’s on Tuesday. The date was highly material for if it was on Wednesday it was after the defendant had been told by the chemist that the liquid was not fit for use and after the defendant had actually received from the chemist a certificate containing the statement that wood alcohol was present in large quantities. If, however, it was on Tuesday there is nothing to show affirmatively that at the time of the sale the defendant knew that the liquid was unfit for use or contained wood alcohol; and the defendant’s testimony is to the effect that at that time he believed the alcohol to be potable because of Sapowitch’s statement, the sample Sapowitch showed him and the certificate of the analysis of the chemists dated Saturday, July seventeenth, which set forth that the liquid was free from wood alcohol and “ O. K.”
The verdict of the jury finding the defendant guilty of manslaughter in the second degree makes this issue relatively unimportant. If the sale was on Wednesday culpable negligence would be a charitable interpretation of defendant’s act. Even assuming the truth of the defendant’s contention and viewing the case on the basis of a sale on Tuesday, the verdict still finds warrant in the evidence. The defendant himself testified that on Tuesday night he made a simple test by putting a small quantity of the liquid in hot water and smelling it. He then found that it gave off a bad odor from which he recognized that the liquid was bad. He was present as stated above when some of the drums which he had bought were being opened and their contents transferred to small containers, yet he did not make the effort to test it at that time by his sense of smell. His knowledge of the danger and the prevalence of poisonous alcohols is shown by his conversations with Sapowitch and all the proof in relation to chemical analyses. Further than this, after he was warned of the danger and assured of the presence of wood alcohol in the liquid by the chemist, he did not notify Maischoss. His reason as already stated is that he did not know who he was. Maischoss, however, testified not only that he had sold the defendant gin some years previously, but that when he
On the merits, therefore, the defendant’s guilt of the crime of which he has been convicted is supported by the evidence.
We entertain no doubt that the learned trial court was right in submitting the case to the jury with instruction that they might find the defendant guilty of manslaughter in the second degree. (People v. Koerber, 244 N. Y. 147.)
The defendant on a motion for a new trial, however, made an argument, and urges it in this court, that the defendant was not given a fair trial on account of a rather peculiar circumstance. It appears that in a casual conversation held on the street between the trial judge and the defendant’s counsel during an adjournment of the trial when the taking of the evidence was almost completed, counsel asked the judge if he intended to charge the jury that the jury’s verdict must be either guilty of murder in the first degree or not guilty, and the judge replied in the affirmative. This was also in accordance with a previous casual statement of the trial judge of his view of the law made a day or two earlier. The defendant’s counsel in reliance oh these statements included the following in his argument to the jury: “And I think, Your Honor, that I am not transgressing the laws of the court to say to the jury that I understand the court will charge you that it is your duty, if you find this defendant guilty as charged in the indictment, to find him guilty of murder in the first degree and if you find that he is not guilty of murder in the first degree, you must find him not guilty.”
At this point the district attorney ■ interrupted, saying: “No, that is not what I understand.” ' The defendant’s counsel rejoined: “ I understand the court is going to charge that,” and the court said: “ Proceed, anyway. We will take care of that matter later.”
The sentence of the defendant to fifteen years’ imprisonment is not justified by the record. It is presumably based upon a finding of a previous conviction of a felony. (Penal Law, § 1941, as amd. by Laws of 1926, chap. 457.) The practice provided in section 1943 of the Penal Law (as added by Laws of 1926, chap. 457) was not followed. (People v. Gowasky, 244 N. Y. 451.) The defendant upon being questioned before sentence admitted a conviction in a Federal court of the crime of criminally receiving stolen property. The record is insufficient to show whether that conviction was for a crime which under our law was a felony or misdemeanor. As the record fails to establish either by his admission or otherwise that he has previously been
Such resentence for a first offense will not prevent the district attorney thereafter filing an information warranted by the facts, in accordance with the provisions of section 1943 of the Penal Law to the end that the question may be properly adjudicated whether the defendant should be punished as one previously convicted of a felony.
The judgment of conviction and the order should be affirmed, except that the judgment is to be corrected by this court resentencing the defendant, for which purpose the defendant is to be brought before this court.
All concur. Present — Hubbs,- P. J., Clark, Sears, Crouch and Taylor, JJ.
Judgment of conviction and order affirmed, except that judgment is to be corrected by this court resentencing the defendant, for which purpose the defendant is to be brought before this court on May 17, 1927, at two p. M.