People v. Collins

• Decision Date: 15 December 1922
• Citation: 137 N.E. 753,234 N.Y. 355
• Parties: PEOPLE v. COLLINS.
• Court: New York Court of Appeals Court of Appeals

234 N.Y. 355

137 N.E. 753

PEOPLE

v.COLLINS.

Court of Appeals of New York.

Dec. 15, 1922.

Raymond C. Collins was convicted of murder in the first degree, and appeals.

Reversed.

Appeal from Richmond County Court.

Frank H. Innes, of Brighton, Staten Island, for appellant.

Joseph Maloy, Dist. Atty., of Tompkinsville (Charles B. Dullea, of New Brighton, and John M. Braisted, of Port Richmond, of counsel), for respondent.

ANDREWS, J.

In September, 1921, a large quantity of liquor was stored in a warehouse on the Staten Island water front. Some time in February, 1922, the defendant, with a number of others, obtained knowledge of this fact.

From the evidence before it the jury was entitled to reach the conclusion that the defendant and these men planned to steal this liquor, conveying it by water to New York City, there disposing of it and dividing the resulting proceeds among themselves. This plan involved obtainingaccess to the warehouse in some way and the binding or silencing of an old man who was night watchman at the place. To carry out this idea Collins and his associates procured a steam barge. On the night of March 1st they boarded it at a dock in New York. One of these associates brought with him three strangers who were to carry the liquor to the barge and who were, it may be inferred, to take care of the watchman. About 7 o'clock the barge started for Staten Island and was docked about a mile from the warehouse. Here Collins and the three strangers left it and approached the warehouse. They tried two or three doors, but found them locked. They then walked around the building. While they were doing so and while apparently on the public street, they saw the watchman approaching with a lantern. In the darkness the three men mentioned were able to escape observation by running around the angle of the building. Collins was slower. He attempted to dive beneath some freight cars, but his coat was caught upon a hook hanging from one of them. The watchman, Connors, saw him. He struck at him with a stick. Collins called for help. The three men reappeared. Collins told them to get the watchman. They struck him a number of blows, and from the effect of these blows Connors subsequently died. Collins and the three men with him then escaped.

Collins' own story, however, is that he had no intention of stealing the liquor. He supposed that the owner wished to move it, and that he was carrying out the owner's instructions in doing what he did. With the three men he came to the warehouse on the night in question, tried the doors and found them locked, started around the building, and saw the watchman with his lantern. He then started to duck under the cars and was caught by a pin or hook. The watchman struck at him, but Collins told him to wait, came from beneath the cars, and had a conversation with him, telling him that he was looking for a certain boat landing. The watchman directed him where to go and they parted. He never came back and had nothing to do with the assault on Connors. He only learned of it later.

[1] The defendant with others was indicted for murder in the first degree in that Connors was killed while the defendants were engaged in a felony or in an attempt to commit a felony. He was convicted, and from the judgment of conviction this appeal is taken.

Under the circumstances the defendant was entitled to have the jury instructed fully and clearly as to the law applicable to the case. We do not think that this was done. There was no actual burglary or larceny. At most, there was an attempt to commit one of these crimes. It is said in the Penal Law:

‘An act, done with intent to commit a crime, and tending but failing to effect its commission, is ‘an attempt to commit that crime.’' Penal Law (Consol. Laws, c. 40) § 2.

An attempt to commit a felony is also itself a felony. Penal Law, § 261. An attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution. Wharton Crim. Law, § 181. There must be, to constitute an attempt, some overt act. Mere purpose or intent is not enough. How closely, however, the overt act must be connected with the intended crime is a difficult question.

‘The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor's mind and his conduct in the attempted consummation of his design.’ People v. Moran, 123 N. Y. 254, 257,25 N. E. 412, 413 (10 L. R. A. 109, 20 Am. St. Rep. 732).

Merely procuring tools to commit a burglary may not be enough; nor may merely starting towards a building some distance away.

‘But if the jury believed that the defendant and his associates were at the post office reconnoitering or inspecting it with the intent to break it open, and that they would have done so had their design not been frustrated by the presence or interference of the deceased, the police officer, then I think it could properly find that they were engaged in an attempt to commit burglary.’ People v. Sullivan, 173 N. Y. 122, 135,65 N. E. 989, 993 (63 L. R. A. 353, 93 Am. St. Rep. 582).

It is a matter of degree. But at least it must be a step in the direct movement towards the commission of the crime after preparations have been made.

‘Felonious intent alone is not enough, but there must be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.’ People v. Mills, 178 N. Y. 274, 284,70 N. E. 786, 789 (67 L. R. A. 131).

[2] Hiring the barge, proceeding on it to Staten Island, walking from its landing place in the direction of the warehouse, would not under the circumstances of this case constitute an attempt. If the defendant, however, reconnoitered the warehouse to determine the means of forcing his way in, if he tried the doors with the design of effecting an entrance and stealing the liquor stored there, the jury might say that the attempt to commit burglary or larceny had been made out. If he tried them, however, merely from curiosity, if having tried them he abandoned his purpose, then either there was no attempt, or the attempt was ended. It was important that the jury should have understood this issue. We doubt if they did so. They certainly received no instruction from the court that would make it clear to them. The crimes of burglary and grand larceny were defined, and they were simply told that they should decide whether the killing was effected by reason of the fact that the defendant was attempting to commit either of these crimes. Unless he was engaged in such an attempt he must be acquitted, since the indictment is restricted to a charge of murder so committed.

[3] The matter of conspiracy is involved in a consideration of this case under various aspects. The killing of a human being is murder in the first degree where done by a person engaged in the commission or in the attempt to commit a felony. Conspiracy itself is not a felony. It is but a misdemeanor. Each conspirator is liable, however, for the acts of every associate done in the effort to carry the conspiracy into effect. If, therefore, the conspiracy be to commit a felony of such a nature as burglary or robbery, if by one conspirator that felony is actually committed or attempted, if in the course of it a person is killed, every conspirator is guilty of murder. People v. Michalow, 229 N. Y. 325, 128 N. E. 228. Conspiracy is here important also upon another theory. Every conspirator is an accomplice in the acts committed in pursuance of it. Therefore the defendant might not be convicted upon the evidence of a coconspirator alone without corroboration. Having these considerations in mind, we believe that the charge of the trial judge on this question was neither clear nor correct.

[4][6] The jury was told that the people had not claimed that the defendant was alone in the intention to commit a crime on this night, but that this crime was to be committed as the result of a common understanding or agreement between two or more persons, which constituted a conspiracy. A definition of conspiracy is then given, and the jury is told that, once a conspiracy is formed up to the time it is carried out, the act or acts of every conspirator is binding on the others. This in itself is not accurate. It fails to note the qualification that the act of one to be binding on the others must be an act carried out in pursuance of the conspiracy. The jury is then told that if, in the carrying out of the provisions of the agreement entered into between them, a person is unlawfully killed, every man who was a party to that conspiracy, whether he was present at the time the act was committed or not, is equally guilty of murder. Again, the statement is inaccurate. To make a conspirator guilty of an act of murder because of the killing of a person by another conspirator, the conspiracy must be to commit a felony, and the felony must be in the course of commission when the killing occurred. Again:

‘The law says that, if a homicide which was murder was committed by one...