People v. Brasch

• Decision Date: 06 October 1908
• Citation: 193 N.Y. 46,85 N.E. 809
• Parties: PEOPLE v. BRASCH.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 46

85 N.E. 809

PEOPLE

v.BRASCH.

Court of Appeals of New York.

Oct. 6, 1908.

Appeal from Supreme Court, Trial Term, Monroe County.

William Sobert Brasch was convicted of murder in the first degree, and from the judgment of conviction, and from an order denying a new trial, he appeals. Affirmed.Walter I. Scott, for appellant.

Charles B. Bechtold, Dist. Atty., for the People.

HISCOCK, J.

The defendant has been convicted of murdering his wife, Roxanna Brasch, at Rochester, on the evening of June 16, 1906, by pushing her into the waters of the Erie Canal, where her body was found on the evening of June 19, 1906. There was no question on the trial that death had resulted from drowning, and the evidence was entirely consistent with the conclusion that the woman got into the water at about the time and place when and at which the defendant was charged with having pushed her in. The serious question which remained was whether she was thrown into the canal by the defendant, or whether she got there through some other agency. No eyewitnesses of the alleged murder were sworn, the evidence on which the defendant was convicted consisting largely of alleged confessions, and the principal questions presented on this appeal are whether the defendant's rights were properly protected in connection with the admission of evidence of these confessions, and whether the latter were sufficiently corroborated by other testimony so that the requirements of the statute on that subject were satisfied.

The history of the defendant prior to the date of his wife's death and the record of his movements on and after that particular day are of so much importance in solving some of the questions of law above outlined that I shall review them at some length. At the time of the alleged murder the defendant was a stalwart man about 23 years of age, and a mechanic by trade. The deceased was 20 years old, and of slight figure. These parties had become married to one another January 20, 1904, and without a short time thereafter the deceased had given birth to a child, of which it is conceded the defendant was not the father. They did not live happily together, and in June, 1905, entered into a formal, though illegal, agreement of separation. On the day this agreement was executed defendant seems to have turned his wife out of doors, and then he went to Cleveland, Ohio. Shortly thereafter he became acquainted with a woman named Gilmore, and, holding himself out as a widower, under an assumed name he asked her to marry him after she had procured the divorce which she was then seeking. In September, 1905, these people commenced living together as husband and wife, and while this relationship continued the Gilmore woman discovered that the defendant still had a wife living. He, however, assured the former that he had an agreement of separation, and would procure a divorce, and he did, as a matter of fact, consult lawyers in reference thereto. April 21, 1906, without any explanation or notice, defendant deserted the Gilmore woman, and returned to Rochester, where apparently some sort of a reconciliation was agreed upon between him and his wife, inasmuch as they commenced living in the same rooms, but not, as claimed by defendant, on intimate terms. After defendant's desertion of her, Mrs. Gilmore discovered that she was pregnant by him, and she came to Rochester on Friday, June 15, 1906, going directly to the defendant's house. Defendant greeted her in an affectionate manner, assured her that he did not have anything to do with his wife, and proposed that she remain until the following, Wednesday, when he would return with her. On the following day, after going to her work, defendant's wife did not return to his home, but at about 3 o'clock that afternoon she appeared at the home of her sister-in-law, where she stayed until evening, when defendant came after her, as will hereafter be more particularly stated. That same afternoon defendant arranged with Mrs. Gilmore that, if she would remain over Sunday, he would return to Cleveland with her, and he packed up his things preparatory to leaving. That evening the defendant, Mrs. Gilmore, and the defendant's brother went out together, and after doing various other things, the former engaged a room for Saturday and Sunday night. Quite late in the evening the defendant, who had seemed worried, and for which condition he gave some innocent excuse, left Mrs. Gilmore and his brother, stating that he would be gone an hour or two in order to perform some work. He returned after about an hour, or an hour and a half, spending that and the following night with Mrs. Gilmore, and going on to Cleveland Monday. It is the theory of the prosecution that the defendant murdered his wife on Saturday evening when he was absent from Mrs. Gilmore, as above stated. During this period he called at the home of his sister-in-law for his wife, and the last that was seen of the latter alive was as she went away with her husband. The latter never gave any notice of his wife's death or any innocent explanation of her disappearance while in his company. The following Monday he and Mrs. Gilmore went to Cleveland, where he renewed his suggestions of marriage, and when the woman replied that he could not marry until he got a divorce, the defendant said, ‘We will wait until we hear from George’ (his brother), and which remark, the prosecution urges, is significant of an expectation by defendant that he would soon get news which he could make public of his wife's death. As already stated, three days later the body of the deceased was found in the canal, in a condition and at a point which corresponded with defendant's confessions, and soon thereafter the defendant and Mrs. Gilmore were apprehended at Cleveland.

There is practically no question that all of the facts thus far stated are fully established by evidence, independent of defendant's confessions, but the exact history of what occurred between the deceased and the defendant after they went away together is dependent upon such confessions, to which I shall now refer. They were made to the police authorities, and were two in number. Aside from various preliminary prevarications and evasions and details, which it is not necessary to recapitulate, the material portion of each was to the effect that, after meeting his wife at the house of her sister-in-law, defendant and she walked around for a while, finally coming to the canal, and that as she walked on the edge of the latter, in a somewhat secluded neighborhood, he pushed her into the water where, after brief struggles, she sank and was drowned, the defendant then returning to the reeom where the Gilmore woman was. The evidence, as actually given with respect to these confessions, indicates that they were made deliberately, voluntarily, and without forbidden inducement, and that they were entitled to the great consideration in establishing the guilt of the defendant which I shall assume they, in fact, received from the jury. The question, however, is whether that full opportunity which the law requires was given to the defendant to impeach them, by showing that in fact they were secured by improper influences. When the people produced a witness for the purpose of proving an alleged confession by defendant, before such evidence was received, the latter was entitled to show, if he could, either by preliminary cross-examination of the proposed witness, or by other witnesses or testimony, that the alleged confession was secured by improper means; and, after the production of such testimony, if any, he was entitled to a preliminary ruling by the court on the admissibility of the proposed evidence. People v. Rogers, 192 N. Y. 331, 85 N. E. 135. The defendant's counsel urges that the trial court erroneously deprived him, both of the opportunity to cross-examine the people's witnesses, and also to produce independent evidence for the purpose of impeaching the character of the alleged confessions, and these claims will be considered in the order stated.

Evidence of the two alleged confessions was given by three detectives respectively named Rowe, Courneen, and Fitchen, two being present at each one. Rowe was sworn first, and there is no basis whatever for any claim that defendant's counsel did not have a full opportunity to cross-examine him in regard to the character of the confession before evidence thereof was given, and this witness, both on his examination by the people and by defendant's counsel, fully and unequivocally stated that the confession was freely made, after warning to the defendant that whatever he said would be used against him, and that it was not induced either by hope of reward, or by fear or other improper causes. Courneen was next placed on the stand, and he gave evidence of both of the alleged confessions. Before he testified to the first one, already testified to by Rowe, the following took place: By the District Attorney: ‘Q. Go on and tell us all that took place in there as you recall it. Mr. Scott: The same objections that were made at the opening of the testimony offered by Inspector Rowe, and I ask for a preliminary examination of this witness on the same subject, and ask that, at the time such preliminary examination be had, it be had in the absence of the jury. Denied. Exception.’ There is no rule which required the court to exclude the jury from a preliminary examination of this witness, and we might very well dispose of defendant's exception at this point, on the ground that his request was too broad, and therefore properly denied. If, however, we should assume that the court should have disregarded that part of the request relating to the exclusion of the jury, and should have granted a preliminary examination of the witness, and erred in not doing so, I should still feel that the defendant suffered no real harm from the error. The witness corroborated the evidence of the witness...