People v. Marwig

• Decision Date: 09 December 1919
• Parties: PEOPLE v. MARWIG.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 382

125 N.E. 535

PEOPLE

v.MARWIG.

Court of Appeals of New York.

Dec. 9, 1919.

William Marwig was convicted of murder in the first degree, and he appeals.

Reversed, and new trial granted.Appeal from Supreme Court, Trial Term, Erie County.

Clark H. Timerman and Edward C. Handwerk, both of Buffalo, for appellant.

Guy B. Moore, District Atty., of Buffalo, for the people.

CRANE, J.

The defendant has been convicted of murder in the first degree for having killed one George Weitz in the city of Buffalo on the 8th day of November, 1918. The defendant himself did not actually kill Weitz. Walter Bojanowski, a companion of the defendant, fired the fatal shot to release Marwig from the clutches of Weitz, who had seized him after the commission of a crime by the two men in Weitz's store. Bojanowski was indicted with Marwig, but the defendants were tried separately.

Weitz was the manager of a jewelry store on Genesee street in the city of Buffalo. On the day mentioned, Marwig and Bojanowski entered the store about noon time evidently for the purpose of committing robbery or larceny. Bojanowski had a pistol and a slung-shot. What was said or done to Weitz who was in the store at the time is not known, but Weitz immediately after there entry ran into an adjoining store through a side door. Marwig was seen by a passerby taking a watch and chain out of the show window. Seeing that Marwig was not the regular jeweler, this person, named William Kallas stepped to the door of the store and evidently interrupted the criminals in their undertaking. Marwig ran out into the street, and Bojanowski, holding up Kallas at the point of his pistol, also made his escape. As Marwig was going along the sidewalk away from the jewelery store and past the adjoining store, Weitz ran out and seized him, and in the ensuing struggle both fell to the ground. Thereupon Bojanowski shot and killed Weitz, released Marwig, and both men ran away. Bojanowski was arrested soon after, but Marwig not until the following month.

The evidence shows that Marwig had walked along the sidewalk of Genesee street until he was opposite the doorway of the store next to the jeweler's. There were show windows on each side of this doorway. It was in front of this doorway of the adjoining store that Weitz grabbed Marwig. There is no evidence that he had any stolen property with him at the time or the watch and chain which he was seen to lift from the show window. Neither was the value of the watch and chain proved to show that if a larceny were committed or attempted it was a felony and not a misdemeanor. Penal Law [Consol. Laws, c, 40] §§ 1298, 1299.

[1] The case was tried upon the theory that Weitz was killed while a robbery was being committed. If such were the fact, of course, Marwig, being present and assisting in the commission of a felony, would be guilty of murder in the first degree, although he did not do the shooting. Both men would be guilty of murder in the first degree, although neither at the time intended to kill Weitz or had premeditated or deliberatedupon his death. Penal Law, § 1044; People v. Giro, 197 N. Y. 152, 90 N. E. 432;People v. Schleiman, 197 N. Y. 383, 90 N. E. 950,27 L. R. A. (N. S.) 1075,18 Ann. Cas. 588.

[2][3][4] The facts as thus stated, however, present another aspect of the criminal law applicable to the case. If the criminals had committed a robbery or a felonious larceny but had been frightened away from the place of the crime; had quit their felonious acts or attempt, and were seeking to escape by running away upon the public streets, the death of a person seeking to capture them would not be the killing of a human being by a person engaged in the commission of the felony of robbery or larceny. If it were not, then neither Bojanowski nor Marwig would be guilty of murder in the first degree unless the jury should find that the death was the result of a premeditated design; deliberation and intent to kill would then be requisites of murder in the first degree.

It is evident that, if the criminals had escaped and were a mile away from the place of the crime, it could not be said that they were then in the commission of a felony. At what distance from the place of the crime would the felony, committed in the store, end? The rule cannot depend upon some arbitrary measure of distance. It was said in People v. Huter, 184 N. Y. 237, 241,77 N. E. 6, that in all the cases to which the attention of this court had been called in which persons had been convicted of murder in the first degree by reason of a killing of a person while the accused was engaged in the commission of a burglary the killing took place upon the premises.

In People v. Marendi, 213 N. Y. 600, 607,107 N. E. 1058, 1060, it was said:

‘Assuming that the defendant fired the fatal shot at Officer Murtha, the truth undoubtedly is that the shooting of O'Connell, if done by the defendant, was to escape the consequences of the earlier completed crime. On that theory the jury might very well have found that the defendant formed the deliberate and premeditated design to shoot any one who got in the way of his escape; but that did not justify the submission of the case to the jury so as to permit a conviction of murder in the first degree for an unintentional homicide, committed without such a design.’

As before stated, the defendant in this case was convictedupon the theory that he and his companion were engaged in the commission of robbery when Weitz was shot. ‘Robbery’ is the unlawful taking of personal property from the person or in the presence of another by means of force or violence. Penal Law, § 2120.

It may be that there was sufficient evidence to warrant the jury in drawing the conclusion that robbery was attempted or committed in Weitz's store. Bojanowski had a pistol and slung-shot, but there is no evidence that he exhibited them until the witness Kallas entered. It is true that Weitz ran out of a side door into the adjoining store, and it is fairly to be presumed that he was frightened. The judge in this case, however, did not charge the jury as to what constituted robbery in any of its degrees.

On the evidence as presented, Marwig and Bojanowski had completed their felonious act or had desisted from the attempt to commit it and were running away, and at the time of the shooting were not engaged in the commission of a robbery. Under such circumstances, the judge would be obliged to charge the jury as to premeditation and deliberation and intent to kill.

The learned trial justice evidently intended to do this, as in the first part of his charge he covered these matters; but he withdrew the effect of it by his statement that the whole basis of the people's case proceeded upon the theory that the defendant was concerned in and participated in the robbery, and he told them the following:

‘If you believe that the defendant planned and participated in the commission of the robbery in the jewelry store and his companion armed himself with a revolver, with the intent to shoot any one who opposed their design or interfered with their plan or that of the defendant or that of either of them, then he, the defendant, is chargeable with such deliberation and premeditation as rendered him guilty of murder in the first degree, where, while after committing or attempting to commit robery, either shoots and kills a person who interferes with him...