People v. Bonier

• Decision Date: 14 June 1907
• Citation: 81 N.E. 949,189 N.Y. 108
• Parties: PEOPLE v. BONIER.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 108

81 N.E. 949

PEOPLE

v.BONIER.

Court of Appeals of New York.

June 14, 1907.

Appeal from Special Term, Erie County.

Charles Bonier was convicted of first-degree murder, and from such judgment, and from an order denying his motion for a change of venue from Erie county, he appeals. Affirmed.

Philip V. Fennelly and Murlin S. Smallwood, for appellant.

Frank A. Abbott, Dist. Atty., for the People.

WERNER, J.

The annals of crime contain no more revolting story than that which is set forth in the pages of the record at bar. An aged man and wife, of pure and simple life, who together had trod the paths of industry and peace for more than half a century, were brutally murdered in their own home in the city of Buffalo. The evidence of this atrocious crime was purely circumstantial, and it led to the acusation and indictment of the defendant, who had himself then passed the scriptural milestone of three score and ten. The motive ascribed for the deed was the defendant's desire to obtain the Freher property without having the means to purchase it, and this, it is said, led to the commission of the double homicide and to the forgery of two deeds purporting to have been executed and delivered by Franz Freher to the defendant. Under an indictment found on the 22d day of December, 1903, charging the defendant with the crime of murder in the first degree for the killing of Franz Freher. the defendant was tried, convicted, and sentenced to death. Upon appeal to this court (179 N. Y. 315, 72 N. E. 226,103 Am. St. Rep. 880) the judgment of conviction was reversed for substantial error in the trial judge's charge, and a new trial was ordered. A second trial has been had. Again the defendant has been convicted and sentenced, and again he appeals to this court. The present appeal consists of two distinct parts. The first is taken upon exceptions to various rulings made during the course of the trial, upon the ground that no deliberate and premeditated design to effect the death of Franz Freher had been shown; and upon the further ground that the verdict was against the weight of the evidence. The second relates to the denial of defendant's motion for a change of venue, which was urged upon the ground that a fair and impartial trial could not be had in the county of Erie, where the indictment was found.

The appeal from the order denying defendant's motion for a change of venue is supported by a brief so voluminous as to preclude the possibility of specific reference to every phase of the extended argument which it contains. It must suffice, therefore, to say that the argument of defendant's counsel assumes that the newspaper publications in and about the city of Buffalo had created such a violent prejudice against the defendant that the presumption of innocence to which he was entitled had been converted into a universal presumption of guilt, thus rendering it impossible to obtain a fair and impartial jury before whom the defendant could be tried. This contention is most effectively and conclusively disposed of by the record, which discloses that only 84 talesmen were examined in obtaining a jury, and that the defendant interposed only 16 peremptory challenges, although under the statute he was entitled to 30. In this generation, when the impaneling of a jury in a widely published murder case is the work of weeks and even months, when hundreds of talesmen are usually examined ad nauseam, until the public are surfeited with comments upon a trial before it really begins, and when the number of peremptory challenges is only limited by an equally peremptory statute, it requires something more than is disclosed by this compact record to make a case for a change of venue in a criminal case. In view of the fact that only 84 talesmen were examined, only 16 of whom were peremptorily challenged by the defendant, only 12 of whom were peremptorily challenged by the district attorney, 44 of whom were excused by the court, and 12 of whom were acceptable to all concerned, there is, even in a period prolific of such motions upon the most fanciful grounds, a large element of novelty in the argument that the public sentiment of Erie county was so inflamed as to jeopardize the defendant's constitutional right to a fair trial. If there was any reason to suspect such a condition when the motion was made, it must have subsided with extreme rapidity, for the motion was made on December 29, 1904, it was decided on January 13, 1905, the trial was commenced on January 25, 1905, and a jury was obtained with a facility that needs no vindication. It is true that some of the talesmen who were examined as to their qualifications to sit as jurors betrayed symptoms of prejudice against the crime of murder, and particularly a murder so heinous as that referred to in the questions addressed to them; but that, we venture to say, was far from sufficient to disqualify them from serving as errors. It will be an evil day, indeed, for the cause of justice when an honest abhorrence of crime shall be regarded as sufficient to exclude an intelligent citizen from the jury box. If that were to become the standard by which to judge of a man's disqualifications for jury duty, murderers and other criminals could never be tried. The true test is whether a man with such a prejudice, which should be the proudest birthright of every citizen, can so far subordinate it to the demands of justice as to render a fair and impartial verdict upon the evidence adduced before him. Measured by that standard, there is no reason to suspect that any man who sat in judgment upon the defendant was disqualified.

The appeal upon the merits requires a recital of the gruesome circumstances which are relied upon by the people to sustain the defendant's conviction. We shall state them in outline rather than in detail, for they stand unchallenged, and two juries have certified to their sufficiency to warrant the defendant's conviction.

Franz Freher and Johanna, his wife, aged 82 and 84 years, respectively, lived in a little frame house of their own at 339 Jefferson street in the city of Buffalo. They were also the owners of another house, known as ‘No. 52 Cherry street,’ in the same city. Franz had been a cabinetmaker by trade, which he had gradually given up with advancing years until, at the time of the homicide, he did nothing beyond the simple errands and odd jobs which were incident to his condition and station in life and were still permitted by the infirmities of age. Johanna was sorely crippled and could scarcely walk, even with the aid of a cane. In the summer of 1903 the defendant began calling upon the Frehers at their Jefferson street home, and it became known in the neighborhood that he was talking of buying it. At that time the defendant was a widower, and was living with a woman named Louisa Lindham, many years his junior, who had left her husband. Under the promise of supporting her and her two children, and of making provision for their future welfare in case of his death, by means of insurance upon his life and otherwise, the defendant had persuaded Mrs. Lindham to become his housekeeper. At the time of the homicide they were living together at 312 Monroe street, which was but a few minutes' walk from the home of the Frehers. As the summer faded into autumn, it was observed that the defendant's visits to the Frehers became more frequent until November. During that period he seemed to be in financial straits, for he was unable to pay his modest rent of $8 per month, and told his landlady contradictory stories about the sources from which he expected funds wherewith to pay. Thus matters continued until about the 10th or 12th of November, when the defendant was seen at the Cherry street house owned by the Frehers, at a time when Franz and a man named Bundschuh were doing some work about the premises. When the defendant came within hearing distance Franz said: ‘Here comes that old Mechlenburger, the old swindler, he wants to buy my property, but hasn't got any money to buy it. I wish he would stay away from me.’ The record does not disclose what, if anything, occurred between the occasion just mentioned and the 19th of November, the day of the homicide. On the latter date the defendant returned to his home much later than was his custom. He had left his house at about 1 o'clock in the afternoon, and, instead of coming back at four or five o'clock as usual, he did not make his appearance until between 7 and 8 o'clock, when it was after dark. As he came in he seated himself in a chair, when the housekeeper noticed that the tops and soles of his boots were covered with mud. She asked him where he had been, and he replied that he had been digging celery at the Jefferson street house. She asked him if he wished any supper, but he only took a cup of tea, although usually a very hearty eater, and then retired for the night. On the following morning, Friday November 20th, Bonier aroused the housekeeper at between 5 and 6 o'clock, when it was still dark, although he did not usually arise until 7 or after, and told her to get him a cup of tea, and that he was going over to the Jefferson street house to see the Frehers, who were going away. After partaking of a light breakfast, the defendant departed and remained away until noon, when he returned, unbuttoned his coat, and took from a pocket an envelope. He did not show the housekeeper its contents, but said in substance: ‘See here, I am fixed all right on that Jefferson street place. I have bought it.’ He also mentioned having purchased the Cherry street place, and informed the housekeeper that they were to move the next morning; that he was going to order a van right away. He partook of lunch, and then went out. He returned at 2 o'clock and remained about the house until 4, when he complained of a pain in his stomach and laid down for a short time. The housekeeper gave him a cup of tea, which was all the supper he had...