Volume 7 — New York Criminal Reports

<p>Murder.—Appeal to Court of Appeals.—Premeditation.—Refreshing Recollection of Witness.</p> <p>Upon a direct appeal to the Court of Appeals in a criminal ease under the provisions of the Code of Criminal Procedure, § 517, as amended by Laws 1887, ch. 498, the Court of Appeals is required to examine the whole case and to determine, whether, in its opinion, the verdict was “ against the weight of evidence or against the law, or that justice requires a new trial, whether any exception has been taken in the court below or not.”</p> <p>These provisions were not intended to authorize by the Court of Appeals the review of findings of fact founded upon sufficient evidence made by the jury, or to reverse judgments simply because of difference of opinion between the Court of Appeals and the jury; but were intended to invest that Court with the power of ordering a new trial in cases where, upon the consideration of the whole case, it is manifest that injustice has been done, although the question has not been properly raised by exceptions in the Court below.</p> <p>The authority of the Court of Appeals in granting new trials to convicted offenders, must be exercised under the restraint of settled rules and in accordance with established principles of law regulating and defining the duties of appellate tribunals'in reviewing the judgments of trial courts.</p> <p>It is not sufficient to excuse a person from the consequences of a fatal assault upon another, that he has been provoked thereto by an angry controversy of words alone, however aggravated they may have been.</p> <p>When violent language induces a personal conflict of strength between parties of comparatively equal ability to inflict injury, the seizure of a dangerous weapon near-by, by one of the parties, and a blow given in the heat of passion might be regarded by the jury as excusable; b.ut this is not the rule where the parties áre unequal in strength and the assaulting party has no reason to apprehend physical injury from the other.</p> <p>Evidence that after an affray between defendant and deceased had apparently terminated, and after deceased had retired to the corner of the room the most remote from the defendant, with an evident intention to avoid him, and that- he then sought her out after an opportunity to reflect upon his course of action, with the obvious purpose of continuing the affray, and with a new and dangerous weapon, is very persuasive proof of a deliberate and determined purpose on his part to inflict injury upon her.</p> <p>After a witness for the prosecution had described the circumstances of the interview which terminated in the killing of the deceased, but had omitted to give the details thereof, it is proper for the prosecution to ask him if he did not previously testify to certain further particulars of the occurrence, this question being asked for the obvious purpose of refreshing his memory and not to contradict him.</p>

Trial of defendant Jose S. Molins in the Court of General Sessions of the Peace for the City and County of Hew York, Hon. Frederick Smith, Recorder, presiding,undér an indictment under section 364 of the Penal Code, charging the defendant in various counts with counterfeiting a trade-mark, and having possession of counterfeited labels.

Trial of defendant Ignatz Reinitz, for forgery in the Court of General Sessions of the City and County of New York, June 18, 1889, Hon. Randolph B. Hartine, presiding. Ignatz Reinitz, a cigar dealer of New York City, was a correspondent of D. Baez & Co., of Key West, Florida. Baez was in the habit of sending checks on a bank in Key West, signed in blank, to Reinitz, who had authority to fill in tiie name of the payee and the amount.

<p>Writ of habeas corpus and certiorari obtained bylgnatz Beinitz.</p> <p>The prisoner, upon the demand of the United States Government, was extradited from Queenstown, Ireland, in April, 1889, under the treaty of 1842, upon a charge of forgery. He was tried npon that charge in Hew York City in the Court of General Sessions and jury, and was acquitted, by direction of the court, on June 19. (See write, p. 71).</p> <p>Within a few minutes thereafter, as he was leaving the Court-House, he was arrested by the sheriff of the county upon an order of arrest granted by the Supreme Court on April 22 in a civil action for the recovery of $4,220.90, moneys of the plaintiff alleged to have been wrongfully converted by the prisoner to his own use. Writs of habeas corpus and certiorari from the United States Circuit Court were thereupon obtained under section 752 of the Revised Statutes.</p> <p>Upon the returns made to. the writs by the sheriff, including copies of all the papers in the civil action, there was no controversy as to the facts, and the only question was whether the prisoner after his acquittal was liable to arrest before the expiration of a reasonable time for his return to Ireland, from whence he was extradited.</p>

<p>Murder.—Eemoval of Trial from General Sessions, to Oyer and Terminer.—Opinions of Jurors.</p> <p>Upon the trial of defendant for murder, it was shown that he had determined upon a separation from his mistress, that quarrels followed, that at the time of the alleged act, a scream was heard coming from the hall into which the prisoner’s apartment opened, and he was seen drawing the woman by her hair into his room, and that the door closed. Other screams were heard, as from a woman, and a sound or something dragging on the . floor. There was a kind of chopping, or dull sound, eighteen or twenty, in rapid succession, and meanwhile a man’s voice was heard, saying, “Now die, die, die.” A witness heard a scream, and looked in at the window and saw the defendant holding his mistress by her left hand. The witness saw him strike her with an axe on the head three or four blows, and when the witness went for assistance to a lower room, she, from there, heard dull muffled blows. When the officers came, they found the prisoner, and the body of his mistress. The prisoner said, “ She wanted me to kill her, and I killed her.” Her body showed the result of many blows. Held, that this evidence justified a verdict of murder in the first degree.</p> <p>There need be no notice given to the defendant of the transfer of an indictment for trial from the Court of General Sessions of New . York to the Court of Oyer and Terminer.</p> <p>On a trial for murder a proposed juror, while examined, said in substance that his scruples were such as would render him extremely reluctant to find the defendant guilty of murder in the first degree. This was somewhat attenuated and modified by further examination. Held, that it was for the court to say, from the examination of the juror, including his appearance- and demeanor, whether he was fit and competent to perform fairly and impartially his duties.</p> <p>Note.—See People v. Kiernan. 3 N. Y. Crim. Rep. 247; affirmed, 4 Id. 88, on the question of a conviction of murder in the first degree although there were no eye-witnesses of the act.</p>

<p>Murder.—Evidence.—Insanity.—Statute Changing Method of Punishment.</p> <p>Upon a trial for murder it appeared that the deceased was a prostitute with whom defendant had been living, and who had been supporting him, and that she had refused to support him any longer. He found another man in her room a short time before the crime. Defendant went away, purchased a pistol, beought a man back with him to the house, and both went in. He called the deceased to come down stairs, saying that there was a man there wanted to see her. She finally came, when the man left, when defendant, having sent the landlady into her own room, standing in the hall with his hand on the street-door, drew the pistol and shot the deceased five times, from which she died. He fled, and when subsequently arrested stated that he had shot deceased' because “ she had shook ” him, he was angry and did not know what he did. Held, that this evidence was sufficient to justify a verdict of murder in the first degree.</p> <p>Defendant, when a small boy, fell oS a banister and hit his head, remaining unconscious a couple of hours. Shortly after his mother’s death, he then being of the age of twelve, he woke up in the night and told his brother that he had seen his mother, and this is said to have been of somewhat frequent occurrence. Defendant slept with his brother, who was the only witness to testify concerning the matter. He had one of these so-called illusions about two weeks before the homicide, as his brother testified. The brother also testified that defendant when at the of seventeen was overcome by the heat. Counsel suggested it was sunstroke and the brother assented, but could not remember whether he was unconscious or not, but remembered that he was sick about a week. Defendant at the time of the trial was about twenty-three years of age and had been a hard drinker. He also had a severe form of syphilis. Held, that these facts were entirely insufficient to show insanity.</p> <p>By the saving clause of section 10 of the Laws of 1888, chapter 489, changing the punishment of death from hanging to death by electricity, the act has no application to the case of a person indicted for crime before the time when the act took effect, but such crime must be punished according to the provisions of the law existing when it was committed, in the same manner as if the statute had never taken effect. '</p>

Appeal by the defendant John Lewis from a judgment of the Court of General Sessions of ¡New York, Hon. ¡Rufus Cowing presiding, entered December 13, 1888, upon-a conviction of murder in the first degree. The questions raised on appeal in the present case were almost entirely questions of fact, and the Court of .Appeals upon considering the facts held that they justified the verdict of murder in the first degree.

<p>Murder.—Qualifications of Jurors.—Application of the Penal Code, §§ 2, 181.—What Pacts Show Premeditation and Deliberation.</p> <p>Section 181 of the Penal Code,—which as amended in 1883 required that the death of the person alleged to have been killed and the fact of the killing by the defendant as alleged must be established as independent facts, the former by direct proof, and the latter beyond a reasonable doubt,—is a rule of evidence applicable upon a trial to all cases within its terms, and is not dependent upon the time of the commission of the offense, whether before or after the taking effect of the Penal Code.</p> <p>Section 3 of the Penal Code,—providing that “ any act or omission begun prior to ” the time of taking effect ‘1 of that code should be inquired, prosecuted, and punished in the same manner as if this code had not been passed,”—does not relate to or include the evidence which may bo given or the degree of proof required upon an inquiry or during a prosecution to secure a eouviction and punishment for crime.</p> <p>The evidence in the present case disclosed threats to kill the deceased, repeated up to within a short time of the homicide, and that defendant did kill the deceased by striking him first from behind with a knife, and then striking him with an axe, that he afterwards mutilated the body for the purpose of burning it, attempted to destroy it, especially such parts as contained peculiar marks, as the head, the hand, and the foot, and the same day, being discovered burning parts of the body in the stove, he told a falsehood about it, and stated that the deceased had gone away, and then himself took flight, taking with him all articles of use or value from tne pockets of the dead man. Held, that these circumstances were oufficient to lead the jury to the con- ' elusion that there was on the part of the defendant, malice and intention to kill, and that the killing by him of the deceased was in pursuance of premeditation and deliberation rather than the effect of sudden anger without design.</p> <p>Note.—Under section 181 of the Penal Code, direct proof of the death of the victim is required. The identity of the person killed may be established by circumstantial or indirect evidence. People v. Palmer, 109 N. Y. 110, also reported infra.</p> <p>Eor authorities on premeditation and deliberation, see note- to a former appeal in this case, at 5 N. Y. Crim. Rep. 232.</p>

Appeal by the defendant, Franklin B. Brower, from a judgment entered upon a conviction of manslaughter in the first degree, rendered against him in the Court of Oyer and Terminer of the County of Rensselaer, November 26, 1888.

<p>Extradition.—Right of Prisoner after Discharge to</p> <p>RETURN TO S'TATE WHENCE HE WAS TAKEN.</p> <p>A prisoner brought from another State before a commissioner of a Circuit Court, upon an extradition proceeding, and for the purpose of preliminary trial only, has, after discharge on his preliminary trial, the legal right to a reasonable period of exemption from arrest to return to the place from which he had been taken.</p>

<p>Habeas Corpus.—Review op Constitutionality op a Statute under which Judgment has been Rendered.—Execution by Electricity.</p> <p>A presumption of constitutionality attaches to every legislative act, and the burden of showing it to be unconstitutional is upon him who assails it. .</p> <p>A legislative act should not, in a doubtful case, be declared by the judiciary to be unconstitutional.</p> <p>A single magistrate, when a constitutional question arises before him, should only declare a law invalid when his duty so to do is entirely clear, and in any case of grave import, he is justified, if not by propriety required, to leave the matter to the deliberation and determination of the appellate tribunal.</p>

<p>Felony.—Attempt to escape from Prison by Prisoner committed ON CHARGE OF FELONY.-MURDER.-COMMITMENT.—View by the Jury.—Oaths of Officers of the Court.</p> <p>Where a prisoner, committed to a county jail under commitments of a justice of the peace, one charging grand larceny in the first degree, and the other burglary in the third degree, attempts with other prisoners to escape from the jail, and a homicide is committed in making the attempt, it is murder in the first degree.</p> <p>The objection that it'did not appear that defendant was in lawful custody or confinement, because the warrant and commitment were insufficient in terms to justify their execution, by reason of and the omission of evidence of any information to support the warrant, and of any order of the justice to authorize the commitment, and because the commitment did not state the nature of' the crimes with which defendant was charged, are not well taken upon the trial of defendant for such murder, where the warrant recites that it was issued on oath, and had the form prescribed by the statute.</p> <p>Although an examination was had at the arrest, and although the magistrate was required by the statute to certify the testimony, and return it and the deposition taken upon information, to the court, there is no necessity for producing them upon the trial of defendant for murder committed as above set forth, in support of the warrant of commitment. The recital in the latter of the-crimes with which defendant was charged, as grand larceny in the first degree, and burglary in the third degree, was a sufficient statement of the nature of the crimes for the purposes in view.</p> <p>A common jail is a prison within the meaning of the statute (Penal Code, §§ 85, 92).</p> <p>There is no valid, objection to a panel of jurors, because drawn from. a particular jury district instead of from the entire county.</p> <p>At the close of the evidence on the part of the prosecution, the jury were allowed to view the placo where the-crime was charged to have been committed, and wore conducted there under the-charge of two constables. After the rendition of the verdict counsel for defendant moved to set- it aside, “ upon the ground that no officer was specially sworn to accompany the jury to view the premises.” It appear ed that before the retirement of the jury to make the view, the clerk of the court had administered the oath to the two constables prescribed by section 414 of the Code of Civil Procedure, and which, in substance, embraced all the requirements of the oath prescribed by section 413 of that Code. Held, that this omission was an irregularity merely, which did not justify a now trial, unless there was some opportunity to conclude that defendant was prejudiced thereby.</p>

Application to Governor David B. Hill by James Hope, petitioner, to revoke a warrant issued preliminary to the extradition of prisoner. The facts appear in the opinion of the Governor.

Appeal by defendant, James Stone, from a judgment entered in the Court of Sessions of Kings County, upon a ■conviction of murder in the first degree. The facts fully appear in the opinion of the Court of Appeals.