People v. Brown
| Decision Date | 14 May 1964 |
| Citation | 249 N.Y.S.2d 922,21 A.D.2d 738 |
| Parties | The PEOPLE of The State of New York, Respondent, v. Sylvester J. BROWN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Arnold Petralia, Rochester, for appellant.
John C. Little, Jr., Rochester, for respondent (E. Garrett Cleary, Rochester, of counsel).
Before BASTOW, J. P., and GOLDMAN, HENRY, NOONAN and DEL VECCHIO, JJ.
The defendant, wielding a knife, engaged in an altercation with his estranged wife during which she sustained various cuts on her body. Defendant was indicted for the crime of attempt to commit murder in the first degree, contrary to Penal Law, sections 2 and 1044. The indictment alleged that defendant 'wilfully, feloniously and of malice aforethought, and with an intent to kill, attempted to kill Ethel Brown by assaulting her with a deadly weapon, to wit, a knife'. Defendant was convicted of attempted manslaughter in the first degree, and appeals on the ground there is no such crime. Upon argument of this appeal the assistant district attorney stated that he agreed with the defendant's contention. The trial court charged that the jury might find defendant guilty of attempted murder in the first degree or any lesser degree of that crime (Penal Law, sec. 610). The intent to kill which distinguishes murder from manslaughter was explained. The jury was also instructed it might find the defendant guilty of attempted murder in the second degree, attempted manslaughter in the first degree, attempted manslaughter in the second degree, assault in the first degree and assault in the second degree. The jury must have concluded defendant lacked intent to kill or they would not have reached a verdict of attempted manslaughter. An attempt to commit a crime consists of (1) the intent to commit the crime; (2) the performance of an act toward the commission and (3) failure to consummate. There must be an intent to commit a specific crime in order to constitute an attempt (People v. Moran, 123 N.Y. 254, 257, 25 N.E. 412, 10 L.R.A. 109; 22 C.J.S. Criminal Law § 75(1) pp. 228-229; 22 C.J.S. Criminal Law § 75(3) p. 233). An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant. We are presented with a situation where one, without intent to kill, wilfully and wrongfully...
To continue reading
Request your trial
-
Austin v. United States
...People v. Monaco, 14 N.Y.2d 43, 248 N.Y.S.2d 41, 197 N.E.2d 532 (1964) (second degree murder, to first degree manslaughter); People v. Brown, 21 A.D.2d 738, 249 N. Y.S.2d 922 (4th Dep't 1964) ("attempted manslaughter," to second degree assault); State v. Porello, 138 Ohio St. 239, 34 N.E.2d......
-
State v. Gutierrez
...Ill.App.2d 480, 230 N.E.2d 12 [1967]). We note that New York has reached the same conclusion under its statutes. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922 (1964) overruled on other grounds People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); see also People v. Martinez, 81 ......
-
People v. Gallagher
...to commit a crime such as reckless manslaughter, which does not require intent, is "logically repugnant" (see e.g., People v. Brown, 21 A.D.2d 738, 739, 249 N.Y.S.2d 922; see also, People v. Acevedo, 32 N.Y.2d 807, 345 N.Y.S.2d 555, 298 N.E.2d 691; cf. People v. Foster, 19 N.Y.2d 150, 278 N......
-
Robinson v. State
...State v. Dahlstrom, 276 Minn. 301, 150 N.W.2d 53 (1967); State v. Carter, 44 Wis.2d 151, 170 N.W.2d 681 (1969); People v. Brown, 21 App.Div.2d 738, 249 N.Y.S.2d 922 (1964); (Both People v. Brown, supra, and State v. Carter, supra, address voluntary manslaughter statutes requiring no intent ......