People v. Schleiman

Decision Date28 January 1910
Citation197 N.Y. 383,90 N.E. 950
PartiesPEOPLE v. SCHLEIMAN.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Trial Term, Kings County.

Frank Schleiman, alias John Smith, was convicted of murder in the first degree, and he appeals. Affirmed.Edward J. Reilly, for appellant.

John F. Clarke, Dist. Atty., for respondent.

WILLARD BARTLETT, J.

The facts in this case do not differ materially from those which we were recently called upon to consider in reviewing the conviction of Carlo Giro, who was engaged in the same burglary and held responsible for the same homicide. People v. Giro, 197 N. Y. 152, 90 N. E. 432. It is not necessary to restate these facts here, inasmuch as to do so we should merely have to repeat the language of Judge Vann in dealing with that branch of the case. Upon both trials it was clearly established that this defendant Schleiman must have fired the fatal shot. The only question which differentiates this appeal from that of Giro arises out of the refusal of the trial judge to comply with the request of counsel for the defendant that he should ‘charge the various degrees of crime.’ An exception was taken to this refusal, whereupon the court added: ‘The jury must either find the defendant guilty of murder in the first degree or not guilty.’ An exception was likewise taken to this additional instruction.

There were two counts in the indictment. The first count charged Giro and Schleiman, the present defendant, with having killed Sophie L. Staber while they were engaged in the commission of a burglary. The second count was the ordinary common-law count charging murder in the first degree by shooting the said Sophie L. Staber willfully, feloniously,and with malice aforethought. In his charge to the jury the trial court made no reference whatever to the common-law count. His instructions related wholly to the crime of murder in the first degree as defined by the Penal Code, ‘when committed * * * without a design to effect death, by a person engaged in the commission of * * * a felony, either upon or affecting the person killed or otherwise.’ Penal Code, § 183; now Penal Law (Consol. Laws, c. 40) § 1044, subd. 2. Section 610 of the penal law (formerly Penal Code, § 35) provides as follows: ‘Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.’ Under this statutory provision, murder in the second degree is certainly a lesser degree of the crime charged in the indictment against the defendant. It has also been customary for trial judges to regard the various degrees of manslaughter as lesser degrees of the crime of felomious homicide; and, therefore, upon the trial of indictments for murder in the first degree, it has been the usual practice for the trial judge, even without any request, and certainly when requested, to charge the jury that they might find the defendant guilty of murder in the second degree, or of manslaughter in any of its several degrees, or of an attempt to commit any of these crimes. See Fitzgerrold v. People, 37 N. Y. 413, 421.

The refusal of the learned trial judge so to instruct the jury in the present case was obviously based upon the idea that, under the undisputed evidence, there were no facts proved or suggested which would warrant the jury in finding that the defendant was guilty of any other degree of homicide, unless he was guilty of murder in the first degree. He evidently regarded the power expressly conferred upon the jury by section 610 of the Penal Law to convict of a lesser degree of the same crime as capable of exercise only where the facts proved or sought to be proved would really and logically justify a conviction for the lower grade of crime. The New York statute empowering the jury to convict of a lesser degree of crime than that charged in the indictment, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime, is largely declaratory of the common-law rule upon the same subject. At common law the jury might convict of a cognate offense, but of a less aggravated character, where the language of the indictment was broad enough to embrace such lesser offense. 9 Halsbury's Laws of England, 371, and cases cited in footnote.

The definition of murder in the first degree in the Penal Code (now the Penal Law) of this state, when committed ‘from a deliberate and premeditated design to effect the death of the person killed, or of another,’ is broad enough to embrace murder in the second degree as defined in the same statute, or manslaughter in either of its degrees. Hence, if the defendant had been tried for killing Mrs. Staber with a deliberate and premeditated design to effect her death, the refusal of the trial judge to instruct the jury in reference to these lesser degrees of felonious homicide would unquestionably have been error. But the defendant was not tried for deliberate and premeditated murder at all. He was tried for killing Mrs. Staber without a design to effect her death, while he was engaged in the commission of a burglary. The evidence was directed toward the establishment of that form of murder in the first degree and toward nothing else. No suggestion was made in the charge that the defendant could possibly be found guilty of deliberate and premeditated murder. The accusation which the jury passed upon was an accusation of killing while engaged in the perpetration of a felony, a crime in which it is not necessary to prove any design to effect death. Under such circumstances, the power to convict of a lesser degree of felonious homicide which belongs to the jury in cases where the degree depends upon the intent cannot properly be exercised, because an intent to kill is not a necessary ingredient of the offense in this kind of murder. It is enough to show beyond a reasonable doubt that the killing was done while the slayer was committing or attempting to commit a felony.

Where the defendant has been tried for a murder of this character the opinion has quite uniformly prevailed that the trial judge is not bound to instruct the jury in reference to the lower degrees of felonious homicide. In Buel v. People, 78 N. Y. 492, 34 Am. Rep. 555, the question was not directly presented owing to the absence of any request raising the point. The court nevertheless remarked that, as the case stood in view of the evidence, the charge of the trial judge as given was fully warranted, although he omitted to refer to the subdivisions of the statute in regard to murder in the second degree. This was a case of homicide without intent to kill perpetrated by a man engaged in the commission of the crime of rape. In Sparf & Hansen v. U. S., 156 U. S. 51, 60, 15 Sup. Ct. 273, 277, 39 L. Ed. 343, the defendants were...

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43 cases
  • State v. Tamalini
    • United States
    • Washington Supreme Court
    • March 26, 1998
    ...by not applying it. The common law viewed murder and manslaughter as varying degrees of homicide. See, e.g., People v. Schleiman, 197 N.Y. 383, 385, 90 N.E. 950, 951 (1910) ("It has also been customary for trial judges to regard the various degrees of manslaughter as lesser degrees of the c......
  • Richmond v. State
    • United States
    • Wyoming Supreme Court
    • October 8, 1976
    ...Reed, 1934, 39 N.M. 44, 39 P.2d 1005, 102 A.L.R. 995; State v. Iames, 1921, 96 N.J.L. 132, 114 A. 553, 16 A.L.R. 1141; People v. Schleiman, 1910, 197 N.Y. 383, 90 N.E. 950. While old, we can find no change in the law expressed in annotations on the subject found in 102 A.L.R. 1019, 27 A.L.R......
  • State v. Le Duc
    • United States
    • Montana Supreme Court
    • June 24, 1931
    ...by a conviction of the lower degree, where no evidence warrants the instruction.” See, also, People v. Schleiman, 197 N. Y. 383, 90 N. E. 950, 27 L. R. A. (N. S.) 1075, 18 Ann. Cas. 588;State v. Hunt, 30 N. M. 273, 231 P. 703; and State v. Pruett, 27 N. M. 576, 203 P. 840, 21 A. L. R. 579. ......
  • In re Childers-Gray
    • United States
    • Utah Supreme Court
    • May 6, 2021
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