277 A.D. 310, People v. Hetenyi

Citation:277 A.D. 310, 98 N.Y.S.2d 990
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE HETENYI, Appellant.
Case Date:July 13, 1950
Court:New York Supreme Court Appelate Division, Fourth Department
 
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Page 310

277 A.D. 310

98 N.Y.S.2d 990

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

GEORGE HETENYI, Appellant.

Supreme Court of New York, Fourth Department.

July 13, 1950

Page 311

APPEAL from a judgment of the Monroe County Court (O'MARA, J.), rendered January 16, 1950, upon a verdict convicting defendant of the crime of murder in the second degree. APPEAL from an order of the Supreme Court at Special Term (VAN DUSER, J.), entered October 26, 1949, in Monroe County, which denied a motion by defendant for an examination of the Grand Jury minutes. APPEAL from an order of the Monroe County Court at Special Term (O'MARA, J.), entered November 17, 1949, which denied a motion by defendant for a bill of particulars. APPEAL from an order of the above said County Court, entered November 29, 1949, which denied a motion by defendant for an order to dismiss and set aside the demand by the District Attorney for a bill of particulars. APPEAL from an order of said court, entered December 3, 1949, which denied a challenge by defendant to the special panel of jurors drawn on November 16, 1949. APPEAL from an oral order of said court on December 8, 1949, which denied a challenge by defendant to the special

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panel of jurors drawn December 7, 1949. APPEAL from an oral order of said court made on December 28, 1949, which denied a motion by defendant for a new trial.

COUNSEL

George J. Skivington, for appellant.

Clarence J. Henry, District Attorney, for respondent.

KIMBALL, J.

The appellant was indicted by a Grand Jury in Monroe County for the crime of murder in the first degree. The indictment charged him with the killing of his wife in that county. He was tried in the Monroe County Court and the jury has found him guilty of murder in the second degree for which he has received a sentence of not less than fifty years to life. The death of the wife by two .25 calibre bullets has been established by direct evidence. Her body containing the bullets was found in the Genesee River within the county of Monroe. The evidence connecting the defendant with the homicide is circumstantial. It was established that the wounds were not self-inflicted and that death was not the result of drowning. It is unnecessary for our purpose to recount the circumstances which were proved from which the jury has found that the defendant shot and killed his wife. All that needs be said is that the verdict is supported by sufficient evidence. This court is not called upon, on this appeal from the judgment of conviction to comment further upon the verdict of the jury since the appellant has raised, on appeal, only questions of law pertaining to alleged errors committed upon the trial. It is for this court to determine not whether the defendant was guilty or innocent of the crime of murder, but whether there were errors of law during the course of the trial and if there were such, whether they were errors affecting the substantial rights of the defendant which are guaranteed to every person charged with a felony under the laws of this State. If there were errors in the course of the trial which did affect these substantial rights of this defendant and he was pre-judiced thereby, this court has no alternative but to reverse the judgment and order a new trial, without regard to the guilt or innocence of the defendant. In such case, the law is plain. 'However clear the guilt of the defendant may appear to be, it is our duty to reverse the judgment of conviction and order a new trial, not in the exercise of our discretionary power, but in obedience to the command of law.' (People v. Bonier, 179 N.Y. 315, 325.)

The first error assigned by the appellant is in relation to the law given to the jury by the court on the question of venue.

Page 313

The court, after reading the indictment to the jury, by which the defendant was charged with murder committed in the county of Monroe, charged the jury as follows:

'In view of the wording of this indictment, I desire to state to you at the very outset that if you come to the conclusion during the course of your deliberations, beyond a reasonable doubt, as that term will be defined for you, that this defendant fired the fatal shots which caused the death of his wife, it makes no difference as to where those shots were fired, in view of the evidence that has been presented during the course of this trial.

'The finding of the body of the deceased, in the condition in which it was found within the confines of the County of Monroe, is sufficient as a presumption of law that the shots were fired in the County of Monroe, so as to give to this court and to you, the members of this jury, jurisdiction of the crime for which this defendant has been indicted by the Grand Jury of Monroe County.'

Exception to this portion of the court's charge was duly taken and the court was requested to charge the jury 'that they must find as a fact in this case that this killing occurred in the County of Monroe before they can find a conviction.' The court declined to charge as requested and an exception was duly taken.

We hold that the charge as given and the refusal to charge as requested constituted error and that such error may not be regarded as a technical error or as one which did not affect the substantial rights of the defendant under section 542 of the Code of Criminal Procedure. It is elementary that the burden of proving the allegations in the indictment was upon the People and that there was no burden whatsoever upon the defendant to prove or disprove anything. By pleading not guilty, the defendant denied every material allegation in the indictment. (Code Crim. Pro., § 338.) The locus of the crime had to be established in the county of Monroe where the indictment was found and where the trial took place. (Code Crim. Pro., § 252.) If it had eventuated upon the trial that the killing took place in some other county, the court would have been without jurisdiction to proceed to judgment. A person charged with a...

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