People v. Smith

• Decision Date: 07 October 1902
• Citation: 172 N.Y. 210,64 N.E. 814
• Parties: PEOPLE v. SMITH.
• Court: New York Court of Appeals Court of Appeals

172 N.Y. 210

64 N.E. 814

PEOPLE

v.SMITH.

Court of Appeals of New York.

Oct. 7, 1902.

Appeal from trial term.

George A. Smith was convicted of murder in the first degree, and he appeals. Reversed.

George Raines, for appellant.

Stephen J. Warren, for respondent.

MARTIN, J.

On the morning of September 9, 1897, at Churchville, in the county of Monroe, a most horrible tragedy occurred. The victim was the defendant's wife. On the following morning the defendant was arrested, and charged with having caused her death. In November, 1897, he was indicted for the crime of murder in the first degree, was subsequently tried, and on November 4, 1898, was convicted of the crime charged. On November 10th he was sentenced to be executed in the manner provided by law. At the time of the homicide the defendant was 63 years of age and his wife 61. They had been married 43 years, and had two adult sons, who were also married; one living at Churchville, and the other at Omaha. The defendant claimed that on the morning of the homicide two burglars entered his house, robbed him of his money, and shot his wife because she attempted to give an alarm. Her death was not immediate, but occurred five days later, from the effects of a pistol wound in the head, inflicted at the time of the tragedy. At that time the occupants of the house were the defendant, his wife, Grant Walker, her nephew, and Miss New, a nurse attending him. Walker and the nurse occupied a bedroom and hall directly over the room where the defendant and his wife slept, but they heard no shot, although the nurse was giving medicine on the hour, and between hours passed up and down stairs. The defendant and his wife occupied the same bed, having retired about 10 o'clock on the previous night. At 12 o'clock they both arose, but soon retired again. Shortly before 3 o'clock, Dr. Van Horn, a neighbor, heard the report of a pistol in the direction of the defendant's house, but it was heard by no one else. At about 3 o'clock the nurse was aroused, but what awakened her she was unable to state. Upon awakening she heard groaning, went to her patient, found him sleeping, and then concluded that it was below, and that it was the defendant. She did not go to the room where he was until about 4 o'clock, and in the meantime the groaning continued, but she heard no other sound, except after 3 o'clock she heard the shutting of a door, which she could not locate. When, finally, she went below, she found the defendant in the dining room, fastened with ropes to the leg of an oak dining table, with his legs bound, his hands tied behind him, and a gag in his mouth. She asked him if he was sick, and he replied: ‘They bound me. Let me loose.’ She at once summoned the neighbors. Upon her return she went to the bedroom occupied by the defendant and his wife, saw blood on the decedent's face and on the sheets, and asked her what had happened. She did not reply, but inquired for the defendant. The neighbors soon reached the house. One of them cut the cords with which the defendant was bound, and raised him from the floor, when he at once stated that two masked burglars had entered the room occupied by himself and wife, dragged him from the bed, compelled him to disclose where his money was hidden, which they took, and then bound, gagged, and left him in the condition in which he was found. He was partly dressed, having on trousers, a night shirt, a pair of socks, and suspenders over his shoulders. The table to which he was fastened was an ordinary dining table, upon which were the dishes ordinarily used for meals. He described the burglars as one being tall, the other short, as wearing white masks and moccasins, and as carrying shining revolvers. He also stated that they kicked, pounded, and sandbagged him; that he heard the discharge of a gun in the room then occupied by his wife, who cried ‘Murder!’ and that that was why they shot her; that after the gun went off the burglars said it went off accidentally; that they then left the house, one of them, at least, going through a window on the south side. A physician who examined Mrs. Smith found a wound in her ear, and powder marks in and around it. Between 7 and 9 o'clock that morning an officer procured from the defendant a revolver, but it was conceded that it was not the revolver used in the commission of the homicide. Between 8 and 9 o'clock Mrs. Smith was examined by physicians present, who announced that she would die from her injuries. The defendant was informed of the result of the examination, and that his wife desired to see him, to which he replied, ‘I can't now.’ Subsequently during that morning the dying statements of Mrs. Smith were taken, which were, in substance, that she was obliged to get up at about 12 o'clock. The defendant got up at the same time, struck a match, and lighted a lamp. Before she was hit she saw no one, and heard nothing, but felt a hard blow upon the side of her head. No one held a gun to her head and threatened her, and she did not know who hit her. Her statement was not signed except by the witnesses, and was rejected at the trial as incompetent, but its substance was proved by witnesses who were present when it was taken. At the time it was made the decedent was in a drowsy stupor or partial coma, and had to be aroused when questions were asked, and she answered them only by ‘Yes' or ‘No.’ The premises where the homicide occurred were searched by officers, who found pieces of rope and cord, which were proved to be similar to those with which the defendant was bound. A revolver frame without a cylinder and also the center pin were found in a building upon the premises, and in the same building were found several cartridges, the bullets in which were proved to be similar to that extracted from the decedent's head. The cylinder belonging to the revolver frame was never discovered, although a most thorough search was made of the entire locality. Until her death the decedent persistently asserted that she did not know who shot her, but that the defendant did not. She passed through increasing symptoms of stupor until absolute coma set in on the following Monday, which resulted in her death in the evening of that day. The defendant asserted that he was seriously injured, and that the burglars had struck him in the chest, knocked him down, and tied him. He groaned and complained so loudly that he was asked to keep quiet both by the physicians and nurses in attendance. Subsequently the physicians removed his shirt, examined his chest, abdomen, and hip where he claimed to have been injured, but no indications of external bruises or injuries were found. Proof was given that there was dust on the window sill that appeared to be undisturbed, which tended to show that no one had passed through the window by which the defendant claimed that at least one of the burglars had escaped. When asked if he made an outcry, he replied, ‘No, there was no need of doing that.’ There was also proof that where he said the box that contained his money was hidden there was dust, but that it was undisturbed; thus indicating that his statement in that respect was also untrue. Other proof was given tending to show that different statements made by the defendant were inconsistent, and that his original statement was false. There was some evidence tending to show that the relations between the defendant and his wife had at times been unpleasant, although there was other proof that their relations were most friendly. There were two life insurance policies of $1,000 each upon the life of the decedent, which had been assigned to the defendant.

On June 13, 1898, the defendant was arraigned, pleaded not guilty, and the trial was commenced, and continued until the 28th day of that month. During that time a jury was selected, and considerable evidence was taken in favor of the prosecution. One of the jurors subsequently became ill, on account of which the trial was adjourned from day to day from June 28 until July 2, 1898, when, upon filing a physician's certificate that the juror could not, without serious risk to his health and life, continue his duties, the court discharged the jury, and ordered the trial postponed. The defendant objected to their discharge, demanded the selection of a new juror in place of the one who was ill, and that the trial proceed. The court declined to comply with his demand, and the trial was postponed until the 19th of September, when it was again commenced. On that day, before a jury was called, the defendant claims to have pleaded former trial and jeopardy in bar of any further trial of the indictment against him. This was overruled, the defendant excepted, and the trial proceeded. On the 4th of November the defendant was convicted of murder in the first degree, and on the 10th day of the same month a motion for a new trial was made and denied. Upon his alleged plea of jeopardy the defendant also moved in arrest of judgment, which was denied, and the defendant was duly sentenced. The defendant's plea of former trial was based upon or consisted of a written application, which set forth the facts in relation to his indictment, his plea of not guilty, the commencement of the trial, its continuance for several days, the illness of a juror, the discharge of the jury by the court on account of such illness, the postponement of the trial, and all the facts attending the action of the court in that respect, and alleged that such postponement was unnecessary, and by reason of the facts thus stated the defendant had been placed in jeopardy of his life and liberty, and could not a second time be placed on trial.

On the trial the people called Emma G. Dabell as a witness, who testified that she was a nurse, and attended Mrs. Smith in her last illness; that on Saturday morning, about 10 o'clock, the defendant was at the house, asked to see his wife, went into her room, followed by Mr. Hawley, an officer having...