This is an information for murder in the first degree, with five counts, stated in common-law form; the first count of which charges the murder of one Laura Yan Yoor-hees, the mother; the second of Edward, her son; the third of Stella, her daughter; the fourth, of Claudia, her female babe; and the fifth, the murder of all four together.
The verdict of the jury was, guilty of murder in the third degree, under the fifth count of the information.
The facts in brief were as follows: In the evening of the first day of November, 1877, the small house in which the Yan Yoorhees family lived, was burned; in the smouldering ruins of which the partly burned remains of Laura Yan Yoor-hees, the mother, of Edward, her son, of Stella, her daughter, and of Claudia, her female babe, were found. The mother was twenty-five years, Edward seven years, Stella four years, and Claudia seventeen months of age. They had evidently retired to rest for the night; the mother, Stella and Claudia side by side in a bed in one corner of the room, and Edward
The verdict of the jury, convicting the defendant of murder in the third degree of all of these persons together, rests wholly upon the assumption that he committed the deed substantially in the manner and under the circumstances above stated.
The relationship, sex, age and condition of the persons killed; the time, place and horrible circumstances of the deed; the mother with her little daughter and female babe by her side in the bed, it may be, and quite likely, asleep; and the little boy on his cot in a distant corner of the room, in the night time, with no appearances of struggle or resistance; their skulls crushed in with a blunt instrument, used with great violence, producing almost instant death; and the house set on fire to consume the bodies of the slain and to exterminate the evidence of the homicide — must all be considered in determining the character of the act, and the degree of guilt involved in its perpetration. There being no direct evidence whatever of the homicide, the case rested upon purely circumstantial evidence of the previous relations and conduct of the parties, and of subsequent discovery of isolated facts and circumstances tending to connect the defendant with the homicide, which it is unnecessary to notice. From the evidence and the instructions of the learned judge to the jury, it is apparent that the ease was tried and considered by the jury upon the suppositions or theories: first, that the deaths were produced by the burn
We shall not inquire whether there was sufficient evidence to connect the defendant with the homicide, but assume that there was; and we shall first consider the case conceding that there was sufficient evidence for the jury to find that the defendant, when he did the tilling, was engaged in the commission of rape or adultery.
Murder in the third degree is “ the killing of a human being, without a design to effect death, by a person engaged in the commission of any felony.” Sec. 4345, R. S.
The three degrees of murder by our statute were comprised in the general crime of murder at common law; and murder in the third degree must have the same requisites as murder at common law; and the degree established by the statute is based, not upon the fact that it is any the less murder, but upon the character of the homicide, and the punishment to be suffered for the homicide, committed under such conditions and circumstances as would be murder at common law. The offense of murder in the three degrees, as defined by our statute, was so before the statute, and is but the adoption or introduction into the statute, of the common law description of the crime. The People v. Enoch, 13 Wend., 159.
It is sometimes stated that the object of this classification is to make a distinction between murder with express malice and murder with implied malice. In the killing without the design to effect death, there can be no actual malice or intention in the act itself; and in murder in the third degree such .malice and felonious intent, necessary to make it murder, is derived from the felony by the commission of which, or in the commission of which, the killing happens. In the state
It will be seen by the above authorities, that, in order to make a killing without a “ design or intention ” murder in the third degree, the felony, committed or attempted, from which the implied malice necessary to murder must be derived, must at least have intimate relation and close connection with the killing, and must not be separate, distinct and independent from it; and when the act constituting the felony is in itself dangerous to life, the killing must be naturally consequent to the felony. In this case, the felony, being rape or adultery, has no such relation to the killing, as a consequence from it or in close connection with it, as to make it possible to impute the felonious intent of the act constituting the rape, to the killing in the manner shown by the evidence and without design, the implied malice necessary to make it murder in the third degree.
The rape, or adultery, and the killing are so distinct and disconnected and independent from each other, in all the particulars of the killing proved, and all the possible particulars of the ravishment imagined or assumed, that the degree of homicide could not be mitigated or lessened, but would rather be enhanced by the commission of the double crime.
But let it be assumed that the act of rape or adultery is in itself dangerous to life, and that the killing happened or occurred, without design, from the act of rape or adultery, or during its commission, so far as Laura Yan Yoorhees is con
But there are two other indispensable requisites or elements of this crime: 1st. The commission or attempted commission of the felony, which in this case is supposed to be the crime of rape or adultery; and 2d, the killing without design.
There may be some vague evidence of former improper relations between the defendant and Laura, casting some suspicion, perhaps, upon the chastity of both, and of some feeling of hostility and fear or dread upon her part, and some hostility or evil design upon his; but there is absolutely no evidence whatever of any rape or attempted rape or adultery at the time of the killing, or of any other felony than what is constituted by the killing itself. It is a mere supposition, guess or theory, of a ravishment or adultery, or attempted ravishment, predicated solely upon the previous relations of the parties, which do not naturally or logically, and by no means necessarily, form the premises of any such conclusion. The case is as barren of all evidence of the commission or attempted commission of a felony separate from the killing, as the above cases in 50 N. Y., 598, and 35 Wis., 315; and the act of killing in both of those cases, in respect to the instrument used, and the deadly consequence, is very similar to that in this case; and the learned opinions in both cases upon the manner of the killing would have been more pertinent and have greater emphasis in this case, where the conviction is for the killing of four persons instead of one, and those persons the mother and her children. In the first case above last
As to the evidence connecting the defendant with the homicide, we shall say nothing; but if the jury were satisfied beyond a reasonable doubt, as they should have been in order to convict him at all, that the defendant was guilty of this horrible deed, then it is quite evident that the verdict was a
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Monroe county, who will hold him in custody until he shall be discharged, or his custody changed by due course of law.