271 N.Y. 427, People v. Sherwood

Citation:271 N.Y. 427, 3 N.E.2d 581
Opinion Judge:CROUCH, Judge.
Attorney:Stanley B. Johnson and William L. Browning, Jr., both of Newburgh, for appellant. Henry Hirschberg, Dist. Atty., of Newburgh, for the People.
Judge Panel:O'BRIEN and FINCH, JJ., dissenting. CRANE, C. J., and LEHMAN, HUBBS, and LOUGHRAN, JJ., concur. O'BRIEN and FINCH, JJ., dissent.
Case Date:July 08, 1936
Court:New York Court of Appeals

Page 427

271 N.Y. 427

3 N.E.2d 581




Court of Appeals of New York.

July 8, 1936

          Dorothy Sherwood was convicted of murder in the first degree, and she appeals.

          Reversed, and new trial ordered.

          O'BRIEN and FINCH, JJ., dissenting.

Page 428

          Appeal from Orange County Court.

          Stanley B. Johnson and William L. Browning, Jr., both of Newburgh, for appellant.

          Henry Hirschberg, Dist. Atty., of Newburgh, for the People.

Page 429

          CROUCH, Judge.

          The defendant stands convicted of murder in the first degree. On the date of the homicide she was 27 years of age. The victim was her own infant son aged 2 years and 3 months. On August 20, 1935, under circumstances hereinafter to be stated, she put the child in his carriage, walked three and one-half miles from her lodging place to a secluded spot off the main highway, and, in a small pool of water eight inches deep, held his head under water until he was drowned.

          The sole defense was that at the time of the crime she was laboring under such a defect of reason as not to know the nature and quality of the act or that the act was wrong. It is now urged that the verdict was against the weight of the evidence, and that it was rendered under misapprehension of the applicable law because of erroneous instructions.

          We cannot say that the verdict was against the weight of the evidence. The defense and the prosecution each swore two qualified psychiatrists who expressed contrary opinions as to the mental state of the defendant in answer to hypothetical questions which were not substantially different. Under such circumstances, argument based upon scattered gleanings from the cross-examination of the people's experts, must fail in an appellate court to demonstrate that the weight of evidence on the issue

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of insanity was with the defense. The jury could accept or reject the opinion of any expert. Dougherty v. Milliken, 163 N.Y. 527, 533,57 N.E. 757,79 Am.St.Rep. 608.

          The serious question is whether the conclusion which was reached can or ought in justice to stand. Technical legal error [3 N.E.2d 582] there was in instructions to the jury, which may or may not have affected the result. Error also there was in an incident of the charge, which, whether it be called technical legal error or not, did almost beyond doubt affect the verdict. Under such circumstances we think the verdict should be set aside.

          The claim of the defense was that the mother killed the child because she had become obsessed with a delusion that in death alone could there be safety and freedom from pain, suffering, and misery for her son. The time has gone by when such a claim could seem fantastic, either to judge or juror. While we still-and rightly-accept the validity of such claims with the utmost caution, we nevertheless know now that they may be valid. The claim here rests upon evidence which, on the one hand, neither discloses nor even suggests any rational motive for the tragic act; and, on the other hand, does build up a personality which might well crack and crumble under the hard blows which fate, within a brief period, dealt it. Born of indifferent stock in a small Western town, the defendant at 9 years of age had lost her mother. For a time she was in an orphanage, and then for a period served her itinerant father and his successive wives as a household drudge. There followed a period of a few years when she lived at various places in the Middle West with a succession of Salvation Army families, doing household and other work, and getting some scattered and interrupted schooling. Following that insecure and sorry young girlhood, she commenced when about 16 years old to earn her own independent way. Shortly she went on the stage as a chorus girl with traveling companies. When she was 19 years old she met and married her husband, a stage electrician, whose job, like her own, kept

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