People v. Chapman

• Decision Date: 19 November 1918
• Citation: 224 N.Y. 463,121 N.E. 381
• Parties: PEOPLE v. CHAPMAN.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 463

121 N.E. 381

PEOPLE

v.CHAPMAN.

Court of Appeals of New York.

Nov. 19, 1918.

Appeal from Supreme Court, Trial Term, Kings County.

Paul Chapman was convicted of murder in the first degree, and he appeals. Affirmed.

Matthew W. Wood and William R. Murphy, both of Brooklyn, for appellant.

Harry E. Lewis, Dist. Atty., of Brooklyn (Harry G. Anderson, of Brooklyn, of counsel), for the People.

COLLIN, J.

Under the evidence and the charge of the trial justice the defendant was convicted, under section 1044 of the Penal Law (Consol. Laws, c. 40), of killing, while engaged in the commission of a felony, Harry Regensburg. The section provides:

‘The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed: * * * 2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a * * * design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise.’

The verdict of the jury established that Regensburg was shot and killed by the defendant while engaged in the commission of a burglary. Burglary is a felony. Penal Law, §§ 2, 407. There was evidence which justified the verdict. Thus much is clear and indisputable. The defendant asserts that there was also evidence which would have permitted the jury to find that the defendant ceased to be engaged in the commission of the burglary before the killing. At the trial the defendant requested the court, in effect, to submit to the jury whether or not, under the evidence, the defendant had, at the time Regensburg was killed, desisted from the burglary, and to charge them that, if they found he had so desisted, they should render a verdict acquitting him. The court declined to charge the requests of such effect of the defendant, who asserts and argues before us, earnestly and cogently through his counsel, that the rulings of the court in that respect were erroneous. Therein the defendant errs.

Our consideration and determination of these assertions do not require that we scrutinize in all its details the evidence concerning the defendant and his acts prior to the night of October 28, 1917, during which the shooting occurred. A general survey of it will fulfill all useful purposes. The shooting occurred in the rear part of the building No. 636 Park place in the borough of Brooklyn, New York City. Park place ran east and west, and the building was upon the south side. In its front on the ground floor were two shops or stores and a vestibule leading into a hall. It was, in height, of at least three stories. Harry Regensburg was the proprietor of the western store. Behind the stores were the rooms in which the Regensburg family, consisting of the husband, Harry, the wife, Jennie, and their child, lived. Three windows opened upon and could be entered from the yard in their rear. In the hall, entered through the vestibule, were the stairs to the second floor and the stairs into the cellar. Stairs led from the cellar into the yard. In the night of October 28, 1917, the family retired about 11 o'clock, the husband and wife sleeping in the bedroom, and Samuel Regensburg, a visitor, and the child sleeping on a couch in the dining room. Upon the trial the people proved by a photographer and civil engineer the nature and description of the premises; by policy officers, ambulance drivers, and others that Harry Regensburg was, between 12 and 1 o'clock, twice shot, and died from their effects, that Samuel Regensburg was twice shot, and died from their effects, and Jennie Regensburg was four times shot, and lived, and various other facts.

The evidence thus far referred to did not connect in any way the defendant with the shooting or the commission of a burglary. The people then introduced in evidence a statement of the defendant made to the district attorney in the afternoon of October 29th after the arrest of the defendant. The statement asserted: The defendant was born October 19, 1901. He had known Hughes Davis five years. He and Hughes Davis and Hughes' brother, Leo, tried to burglarize 636 Park place. He met Hughes at 6 o'clock in the afternoon of Sunday, October 28, 1917, at the suggestion or request of himself. He had been with Hughes and some of his friends the night before at Hughes' house. Within the seven days last prior to that time they were several times together. Soon after they met on Sunday they walked, as Hughes desired, by the cigar store of Regensburg to see if there was somebody there. While going there Hughes told him that he tried to rob the place the Sunday night before. They then went to Hughes' house, which Hughes entered to see if his friends had telephoned. Hughes came out and said to him they had not telephoned; that his brother Leo had telephoned he would come from Providence and to wait for him. This was a little after 7 o'clock. The brother Leo came, and the two brothers went in the house and remained there about 10 minutes. The three then arranged to commit the robbery which had been decided upon by Hughes and his friends at Hughes' house the night before. Hughes and the defendant went to the house of one of the friends to, and did, procure a pistol, additional to the pistol Hughes had, and returned to Hughes' house. The statement proceeds:

‘His brother had come out looking for him [Hughes]. We waited on the stoop, and his brother came back and started talking about the job; talking how they were going to put the chloroform in the room and how to make a get-away and all the signals for the lookout. We went to get the chloroform.’ Each of Hughes and the defendant had a loaded pistol. The defendant, at the direction of Hughes, sought to buy chloroform at four drug stores, at two was successful, and obtained chloroform liniment at a third. He gave his purchases to Hughes, who said: ‘I guess we have enough now; we will go up to the house [of Hughes].’ While going he said: ‘I didn't tell you where the place is yet; it is Regensburg's.’

‘I asked him if it was not dangerous after trying to do it the Sunday before; that they would be watched. He said ‘No.” They went up to Hughes' house, and Hughes went in to put the chloroform in the atomizer, and rejoined JOINED ON THE STREET THE DEFENDANT AND LEo. ‘he had everything with him; he had a jimmy, blackjack, gun, pair of rubber gloves, pair of kid gloves, atomizer and a light, a flash light, very small one like a shaving tube, only just three-fourths as thick. He gave me the rubber gloves and an extra clip of cartridges. He said, ‘Keep these; I may need them.’ * * * I never saw a gun in my life, especially an automatic. We brought it in the hallway to see how to load it had take it off safely. He saw that it was loaded and I would not kill myself with it.' They planned the manner of entering the premises and of signaling. This was some time between 11 and 12 o'clock. They went to the building, and, as planned, Leo went upon the side street for the purpose of signaling. Hughes and the defendant went through the vestibule, hall, and stairs into the cellar of the building, and thence by the stairs from the cellar into the yard. As they were just going to open the window to introduce the chloroform they were disturbed by the opening of a door and the light through it. ‘We both ran back, and there is a window in the rear of this apartment house and a hole about four feet deep and four feet square. I jumped up on the window, and when we got in we were right in the hall of the apartment house. We went outside on the street and walked around, and talked. I wanted to throw up the job, but he said, ‘No.’ ‘Take a chance; there is lots of money there.’ I said: ‘Are you sure there is lots of money there?’ He said: ‘Yes.’ I said: ‘I will try once more, but if we are disturbed again, nothing doing.’ We came back again and went in the same way. * * * Had to go in the cellar again. Went down in the cellar, and I got out in the same position again. * * * We didn't expect there would be three people there. We expected there would be a man and his wife. I looked in and saw the man and his wife, and Hughes looked in and said: ‘There is another man there.’ I said: ‘We can't do anything; I am going to beat it.’ He said: ‘No; we will take a chance.’ I needed the money, and I took a chance.'

Hughes raised the window of the dining room, close to which Samuel Regensburg and the child were sleeping, an inch or so. The window of the bedroom in which the husband and wife were sleeping was open and screened. Hughes ‘pumped’ the chloroform into the dining room. The defendant watched the sleeping persons. Hughes opened the window way up while the defendant watched the people very close to see if they moved. The defendant refused the request of Hughes that he strike Samuel with the blackjack, ‘as there seemed to be a child in the bed.’ He told Hughes, if he did not want to use the chloroform, he would quit, as he would not hurt anybody, as there seemed to be a child in bed. Hughes took a rag, soaked it with chloroform, put it on the end of the jimmy, and set it under Samuel's nose, and the defendant went and took another look at the man and woman. Hughes, then, with the consent of the defendant, entered the room through the window, stood for a minute, sat down in the chair next to the bed, held the backjack or jimmy in his right hand, took the chloroform in the other hand, and reached for Samuel's nose, who then woke up, and was immediately struck in the head by Hughes with the blackjack or jimmy. The statement proceeds:

‘The fellow fell back and screamed, and as he screamed I ran out and down in the cellar. I ran around the cellar, but I couldn't find the stairs. I ran back again, and I just turned the corner as Hughes was stepping out of the window. He didn't have a hat on. He didn't have the light. I said: ‘Let's throw the guns...