People v. McCarthy

• Decision Date: 02 October 1888
• Citation: 110 N.Y. 309,18 N.E. 128
• Parties: PEOPLE v. McCARTHY.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 309

18 N.E. 128

PEOPLE

v.McCARTHY.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from supreme court, general term, Third department.

William McCarthy was convicted in the court of sessions of Albany county of manslaughter in the second degree, in having killed one Richard F. Doring. The general term affirmed the judgment of the trial court, and defendant appeals. Code Crim. Proc. N. Y. § 279, relating to indictments, provides that ‘the crime may be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.’ Section 323 provides that ‘defendant may demur to the indictment when it appears upon the face thereof * * * that more than one crime is charged in the indictment, within the meaning of section 279.’ And section 331 declares that ‘the objections mentioned in section 323 can only be taken by demurrer.’

D. Cady Herrick, for appellant.

Andrew Hamiltion, Asst. Dist. Atty., for the People.

DANFORTH, J.

The defendant was indicted for the crime of manslaughter, in having killed one Richard F. Doring, at West Troy. He pleaded not guilty. The issue was tried at the sessions, and it then appeared that the defendant was a member of the police force of that village, and that while patrolling his beat at night, dressed in citizen's clothes, he fired his pistol twice at Doring with such effect as to inflict a wound, and thereby cause his death. There was no dispute as to these facts, but the defendant, by his own testimony, sought to explain the act by saying that he saw a man running through the streets, and called him ‘to stand.’ He did not obey, and after two more ineffectual calls the defendant says: ‘I pulled out a revolver, and shot, as I supposed, towards the ground. He continued running. I fired another shot towards the ground, as I supposed.’ He also says: ‘There was a gang of thieves operating in that ward for the last four or five weeks, * * * and, as I saw him running, I supposed it was one of the party.’ In fact Doring was a good citizen, returning from lawful business to his own home.

The points made in support of this appeal are (1) error on the part of the trial judge in refusing to direct an acquittal at the close of the people's case; (2) in admitting improper evidence; (3) in charging the jury; (4) in refusing to charge as requested by the defendant's counsel. The indictment, in two separate counts, accused the defendant of manslaughter in the first degree, committed under different circumstances, and in a third court of manslaughter in the second degree, viz., by discharging his pistol ‘in a culpably negligent manner,’ in the direction of Doring. At the beginning of the trial the defendant's counsel asked the court to instruct the district attorney to elect which count he would proceed on, and, at the close of the evidence on the part of the people, and again upon all the evidence, that he be directed to elect on which count a conviction was asked. Separate counts were proper under certain circumstances, (section 279, Code Crim. Proc.,) and if more than one crime was charged, except as permitted by that section, the proper and only remedy was by demurrer, (Id. §§ 323, 331.) Nor had the defendant any legal right to the instruction asked for. Such an application is an appeal to the discretion of the judge, founded upon the supposition that the accusation extends to more than one charge, and might therefore embarrass the defendant in meeting it, ( Reg. v. Trueman, 8 Car. & P. 727; Hawker v. People, 75 N. Y. 487,) and a denial of the application cannot be successfully assigned as error. It is unnecessary to consider whether the trial judge should have directed an acquittal upon either the first or second count. The verdict of the jury was specifically for ‘manslaughter in the second degree,’ and being silent as to the other charges was therefore equivalent to a verdict of not guilty of the crime charged in the first and second counts, (Guenther v. People, 24 N. Y. 100;People v. Dowling, 84 N. Y. 478,) and for the commission of the same crime in any degree the defendant cannot be again tried so long as the judgment herein stands unreversed, (Pen. Code, § 36.)

Upon the examination of Mrs. Doring, the mother of the deceased, it appeared that the defendant, following the wounded man, came to her house, and in the presence of her son had a conversation with her at the door in respect to the matter. This conversation she narrated and said, speaking of her son, ‘He got up during the time I was talking with him [the defendant] and went in.’ Being subsequently recalled, the following occurred: ‘While you were talking with the officer your son went in? Answer. Yes, sir. Question. And you went right in. Did you have any conversation with with him then? A. He told me--. [Objected to. Objection overruled. Defendant excepted.] Q. What did he say? A. He said the officer did not say anything to him until after he fired the second time. [The defendant's counsel moved to strike out the last statement as incompetent and improper.] Q. The officer wasn't there at the time? A. No, sir. Q. The Court. How long after the transaction?. A. Shortly after. Q. The Court. How...