People v. Kennedy

• Citation: 54 N.E. 51,159 N.Y. 346
• Parties: PEOPLE v. KENNEDY.
• Decision Date: 06 June 1899
• Court: New York Court of Appeals

159 N.Y. 346

54 N.E. 51

PEOPLE

v.KENNEDY.

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, trial term, Erie county.

John Kennedy was convicted of murder in the first degree, and he appeals. Affirmed.

Harry L. Taylor, for appellant.

Thomas Penney, for the People.

MARTIN, J.

That upon the 9th day of October, 1898, the defendant killed John Hummings by stabbing him with a dirk or clasp knife was plainly established and not denied. The only question litigated upon the trial was whether the homicide was committed under such circumstances as to constitute a crime, or whether it was justifiable. The claim of the defendant was that he was attacked by the decedent, and that he killed him in the lawful defense of his own person. Upon that issue the jury found against him. Before a party can justify the taking of life in self-defense, he must show that there was reasonable ground for believing he was in great peril, that the killing was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another and to receive great bodily injury, it is his duty to avoid the attack, if in his power to do so, and the right of attack for the purpose of self-defense does not arise until he has done everything in his power to avoid its necessity. People v. Constantino, 153 N. Y. 24, 47 N. E. 37;People v. Johnson, 139 N. Y. 358, 363,34 N. E. 920;People v. Carlton, 115 N. Y. 618, 623,22 N. E. 257;People v. Sullivan, 7 N. Y. 396. Applying these rules to the proof in this case, it is evident that the defendant's claim that the homicide was committed in his own defense cannot be sustained, as it was, under the evidence, at least a question of fact, and the finding of the jury is conclusive.

The first point presented by the learned counsel for the defendant in his brief is that the evidence was insufficient to justify the jury in finding the defendant guilty of murder in the first degree, because it failed to show any intent on the part of the defendant to kill the decedent, or that the act was performed with the premeditation and deliberation required to constitute that crime. Hence a brief epitome of the facts and circumstances disclosed by the evidence seems necessary to the proper consideration of that question. The record discloses that the defendant is a colored man, who at the time of the homicide was living at No. 167 Elm street, in the city of Buffalo. He was then 27 or 28 years of age, and a waiter by occupation, although he had not been steadily employed for some months anterior to that time. Between 8 and 9 o'clock on Sunday morning, the day of the homicide, the defendant and a friend, Reese Augustus, were engaged to some extent in drinking together. They then went to several places in the neighborhood where they resided, and on their way each stopped at a laundry to obtain his linen that had been left there. They then returned to the rooms they occupied upon Elm street, after which they had two more drinks of whisky, and at about 10 o'clock the defendant left to take a walk in the neighborhood. After walking about two blocks he met Nellie Davis, a colored woman of his acquaintance, who was on her way to a room or tenement known as ‘No 13 Gay Street,’ occupied by one Minnie Lewis. After a short conversation between the defendant and Nellie, the latter entered No. 13, and was followed by the defendant. In the room which they entered there were the decedent and Minnie Lewis, who were in bed together, a woman whose real name was Fannie Truss, William Harris, Spencer Quarrells, and Robert Green, all of whom were colored. While there, a dispute arose between the defendant and one of the women, whereupon Minnie Lewis asked him to leave, and attempted to force him to do so. A quarrel ensued, and he left the house, but picked up a bottle and returned to the doorway. The decedent then arose from the bed, put on a pair of trousers, and came to the door, whereupon a fight between him and the defendant commenced, and continued until some one called the police, when they separated. During the encounter the defendant struck the decedent with the bottle, causing a slight wound upon his head. Although neither party was seriously injured, the advantage of the contest seems to have rested with the decedent. When the parties separated, the defendant went into Cotton's saloon, and from there to Gay street, then down Michigan to Vine street, and then to his room on Elm street. While there he changed his clothing, and soon after returned to Gay street, where the affray occurred. While returning he was warned not to go to the house where the fight took place. He, however, disregarded the warning, continued his course, and entered the room occupied by Minnie Lewis, where he found the decedent upon the bed, with Minnie Lewis sitting by his side, and Fannie Truss bathing his head with witch-hazel. When the defendant entered, the decedent arose, and another struggle followed. During the last encounter the defendant drew a long dirk or clasp knife which he then had, with which he struck the decedent repeatedly, inflicting several severe wounds, which resulted in his immediate death. The defendant then left the house, wringing the blood from his hands, and went to a saloon on the corner of Elm and Church streets, where, while he was washing, he was arrested. The knife with which he stabbed the decedent was left in his body. A wound was found upon the decedent's neck four inches in length, which severed several arteries, and which was of itself fatal. The defendant's knife and hat were found near the body. He admitted having killed the decedent, but claimed that when he returned to Gay street he was in search of Nellie Davis; that he opened the door and asked for her, whereupon the decedent jumped from the bed, declared that he would fix the defendant this time, and struck at him; and that thereupon they clinched, and the decedent attempted to strike him with a piece of iron, when he drew his knife, struck blindly at him, and thus inflicted the wounds which caused the decedent's death. Upon this evidence the defendant based his claim that he acted only in self-defense. The testimony of the witnesses called by the people was to the effect that the defendant entered the room with a rush, inquired for the decedent in indecent terms, whereupon the parties clinched, and very soon the defendant pushed the decedent from him, when the latter staggered and fell to the floor, the blood spurting onto the defendant, and the decedent soon expired. After the homicide, no marks of the struggle were found upon the body of the defendant, except a slight scratch between the thumb and index finger of his left hand. The knife with which the decedent was slain belonged to Reese Augustus, from whom the defendant borrowed it that day. Whether he obtained it before the first encounter, or afterwards, does not clearly appear from the record. The evidence upon the part of the people tended to show that it was procured after the first encounter, while the defendant claimed that it was obtained before that time, and for a legitimate purpose. We think the testimony was sufficient to warrant the jury in finding that it was procured after his first difficulty with the decedent. Under the evidence given upon the trial, it is quite obvious that the question whether the homicide was perpetrated under such circumstances as to constitute the crime of murder in the first degree was a question of fact for the jury. There was abundant evidence to justify the jury in finding that, after the first encounter, the defendant, in a spirit of revenge arising from chagrin or anger at his defeat, went to the room of his friend obtained the knife, and returned, intending to kill the decedent. If, however, it be said that it is uncertain whether he obtained the knife at that time, or had obtained it previously for another purpose, still it is not very material, as in either event he had abundant opportunity between the first occurrence and the time of the homicide to form a premeditated and deliberate intent to commit the crime of which he was convicted. Moreover, he was cautioned by parties to whom he was known not to return, thus showing that it was evident to them that he was returning for the purpose of renewing his contest with the decedent. The facts and circumstances bearing upon this question were abundantly sufficient to justify the jury in finding that the defendant not only intended to kill the decedent, but that it was done with premeditation and deliberation.

This court has so often stated the rule as to the intent, premeditation, and deliberation necessary to constitute the crime of murder in the first degree, that it seems unnecessary to restate it at this time. If there was an intention to kill, which was deliberate and premeditated, and the killing followed, the crime was complete. People v. Majone, 91 N. Y. 211;Leighton v. People, 88 N. Y. 117;People v. Beckwith, 103 N. Y. 364, 8 N. E. 662;People v. Conroy, 97 N. Y. 76;People v. Hawkins, 109 N. Y. 408, 17, N. E. 371;People v. Johnson, 139 N. Y. 358, 34 N. E. 920;People v. Constantino, 153 N. Y. 24, 37, 47 N. E. 37;People v. Decker, 157 N. Y. 194, 51 N. E. 1018. Where the proof justifies a jury in finding that the homicide was intentional, and resulted from sufficient deliberation and premeditation to warrant a verdict of murder in the first degree, this court will not interfere with the determination of the jury upon the facts. People v. Sutherland, 154 N. Y. 345, 48 N. E. 518. The proof in this case was such as to justify the verdict, and consequently, under the principle of its former decisions, this court should not interfere upon the ground discussed.

The defendant also claims that the charge of the trial judge was not impartial, but was highly prejudicial to him. We have examined the entire charge, but find in it nothing which...