People v. Brengard

• Decision Date: 03 July 1934
• Parties: PEOPLE v. BRENGARD.
• Court: New York Court of Appeals Court of Appeals

265 N.Y. 100

191 N.E. 850

PEOPLE

v.BRENGARD.

Court of Appeals of New York.

July 3, 1934.

Alfonse Brengard was convicted of murder in the first degree, and he appeals.

Affirmed.

Appeal from Nassau County Court.

S. Frederick Placer, of New York City, and Charles N. Wysong, of Port Washington, for appellant.

Elvin N. Edwards, Dist. Atty., of Mineola (Philip Huntington, of Glen Cove, and Albert M. De Meo, of Mineola, of counsel), for respondent.

O'BRIEN, Judge.

On July 22, 1928, John Kennedy was shot, and on July 13, 1932, he died. He was a uniformed officer attached to the police force of Nassau county and, while patrolling alone in a police car at midnight, he discovered an unoccupied automobile parked in a secluded rural lane. In the course of his investigation concerning this car, he was shot by some person whom he never identified. On October 2. 1933, the defendant Brengard was jointly indicted with William French, ‘each aiding and abetting the other,’ for murder in the first degree. On a joint trial, French was convicted of murder in the second degree, and Brengard in the first degree. Only Brengard's appeal is before us. Many points for reversal are urged, and we have carefully considered all of them. Three merit discussion.

Is the evidence sufficient to prove beyond a reasonable doubt that Brengard is the person who shot or aided and abetted in shooting Kennedy, and, if his identity be established, is the proof sufficiently strong to show deliberation and premeditation? The parked car which the policeman found in the woods was the property of Brengard. His hat lay a few feet from the car. The bullet which entered Kennedy's body was shot from a revolver owned by Brengard. A day or two after the shooting, as he admitted, he filed certain identifying numbers from this weapon and hid it in a chicken coop at his home. He did not take the stand as a witness, but in statements made to the authorities he denied that he was present at the scene of the assault and at first denied that French had ever been out in his car, but later asserted, as an explanation for the presence of his car and his hat in the woods where Kennedy had been shot, and the fact that it was his revolver with which the assault had been committed, that he had loaned his car to French for the purpose of visiting friends, and that his hat and revolver were in it at the time. He stated that on the night of the assault he had been training for a prize fight at a gymnasium, but no witness came forward at the trial to testify to such a fact. His parents and a friendly neighbor, however, did swear that he was at home when the shooting occurred, but their credibility was for the jury. In reply to the question, asked by a police officer, why French should accuse him of the shooting, as French had done in his presence, he answered that French associated with some people who might want to get even with him. From this evidence the jury was justified in drawing inferences beyond a reasonable doubt that Brengard was present at the time of the attack, and that the hand which discharged the weapon was the hand of the owner. That he shot with intent to kill is supported by requisite evidence. He had formerly been a member of the state police and, as such, he was accustomed to the use of firearms. The bullet which hit Kennedy penetrated the abdomen and liver, and lodged in the spinal column. In the selection of this part of the anatomy as a target, a skilled pistol shot may be concluded to have intended to inflict a fatal wound. Considering the elements of deliberation and premeditation, the fact that Kennedy and his police car were so located as to impede or prevent the departure of defendant's car is of great significance, presents a question for the jury and constitutes a foundation for the conclusion that the owner of this car, parked at dead of night in a densely wooded locality, deliberately shot an officer of the law as part of a plan to escape. People v. Morse, 196 N. Y. 306, 89 N. E. 816. The weapon which was used and the character of the wound which was inflicted, considered with the later conduct of defendant, which the jury might view as inconsistent with innocence, forms a basis for the inference of premeditation and deliberation. People v. Schmidt, 168 N. Y. 568, 61 N. E. 907.

Was Kennedy's death the result of the bullet wound as the producing cause? The death certificate states the cause of death as cardiac failure due to embolism, and the contributing cause, among others, as ‘bullet wound.’ One of the physicians who attended Kennedy testified: ‘The producing cause of death was the gunshot wound in the spinal column. The contributing causes were chronic pyonephritis, or pus in the kidneys, accompanied by osteomyelitis of the bond matter, with terminal embolism. * * * The primary cause is your bullet wound of the back. The minute that bullet struck his back he started to die then and that is just the last thing that happened.’ This physician's allusion to the last thing that happened has reference to embolism as the terminal cause of death. At the time of his injury Kennedy was 23 years of age, 6 feet 4 inches in height, and weighed 210 or 220 pounds. Subsequent to the infliction of his gunshot wound he lost more than 100 pounds in weight. His right leg was completely paralyzed by the shot in his spinal column, and the left leg 95 per cent. paralyzed; he totally lost control of the bladder and the rectum. In June, 1929, the bullet was removed from his spine, and in April, 1932, his right leg was amputated. In July, 1932, he died. Even without expert opinion evidence, the jury could decline to entertain any reasonable doubt that it was the bullet wound which caused his death.

The most important issue of law, one which has never been decided by this court, relates to the question whether an indictment for murder will lie when death occurs, as it did in this case, more than a year and a day after the assault. At common law it would not lie (Holdsworth's History of English Law, vol. 3, p. 315; Stephen's History of the Criminal Law, vol. 1, p. 247; vol. 3, p. 8), but the Appellate Division in the Second Department has recently decided that the ancient rule has been abrogated by statute. People v. Legeri, 239 App. Div. 47, 266 N. Y. S. 86. Decisions in other states hold differently. Hardin v. State, 4 Tex. App. 355;State v. Dailey, 191 Ind. 678, 134 N. E. 481, 20 A. L. R. 1004;State v. Orrell, 12 N. C. 139, 17 Am. Dec. 563;State v. Anderson, 4 Nev. 265;People v. Murphy, 39 Cal. 52. Some of the early statutes of this state bestowed partial recognition upon the common-law rule and at the same time departed in some respects from it. By chapter 22 of the Laws of 1787, willful killing by poison was deemed premeditated murder. No reference occurs in that statute to the time elapsing between...