299 N.Y. 347 | NY | 1949
Defendant, proprietor of an Amsterdam, New York, tavern, indicted for murder, second degree, was convicted of the crime of manslaughter, first degree, for the killing of Charles Amberger, a customer in the tavern. The Appellate Division, Third Department, affirmed the judgment, and its *349 Presiding Justice granted defendant a certificate permitting an appeal to this court.
The County Judge's charge told the jury that it might, if guilt had been shown beyond a reasonable doubt, convict defendant of murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree. The jury's finding against defendant as to the second of those listed crimes necessarily meant, under the language of the court's charge and under the definition in section 1050 of the Penal Law, that defendant had killed Amberger: 1. While "engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or, 2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon."
The record contains no proof that defendant was committing, or attempting, any such misdemeanor as the statute contemplates, nor does it contain any proof of a killing either in a "cruel and unusual manner", or "by means of a dangerous weapon." The conviction, therefore, was unlawful.
1. The only misdemeanor defendant was committing, or attempting, was an assault on Amberger. But that was not a separate misdemeanor, but a component of, and merged into, the homicide on trial. People v. Stacy (
2. There was nothing "cruel and unusual" about this assault, in the sense that the statute used those words. No applicable New York decisions define that statutory phrase (see 1937 Report of N Y Law Revision Commission, p. 731 et seq.) and it must be read as the average intelligent man would read it. To be "cruel and unusual" the manner of commission of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric (see State v. Knoll,
3. Nor was there here any ground for a holding that Amberger was done to death "by means of a dangerous weapon." We agree with the Law Revision Commission's report, above cited, which, in a note at page 728, says that "extended discussion or citation of authority" is not needed to establish this point. When the Legislature talks of a "dangerous weapon", it means something quite different from the bare fist of an ordinary man (seePeople v. Adamkiewicz,
Of various other alleged errors at the trial, we mention one only. It was plainly wrong to permit the prosecutor, after cross-examining defendant about his assault conviction some years before, to read to the jury the information in that other case, which contained most prejudicial matter (People v. De Garmo,
The judgments should be reversed and a new trial ordered.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DYE, FULD and BROMLEY, JJ., concur.
Judgments reversed, etc. *351