People v. Driscoll

• Decision Date: 29 November 1887
• Citation: 107 N.Y. 414,14 N.E. 305
• Parties: PEOPLE v. DRISCOLL.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 414

14 N.E. 305

PEOPLE

v.DRISCOLL.

Court of Appeals of New York.

November 29, 1887.

Appeal from general term of the supreme court.

This was an indictment for murder in the first degree against Daniel Driscoll. The defendant was found guilty, and sentenced to be hanged. Defendant appealed.

Howe & Hummel, for appellant.

McKenzie Semple, for respondent.

RUGER, C. J.

The questions involved in this appeal are so fully and satisfactorily discussed in the opinion of BARTLETT, J., at general term, that it is unnecessary to go much into detail in giving our reasons for affirming the judgment of the court below. In capital cases, however, it has been the custom of this court to state with some particularity the grounds upon which its decision is based, although it may involve, to some extent, a repetition of the views expressed by other courts.

The record in this case shows that the defendant was tried September 27, 1886, in the court of general sessions of the city and county of New York, upon an indictment charging him with the crime of murder in the first degree, in having killed one Bridget Garrity by discharging at her a pistol loaded with gunpowder and bullet, which latter penetrated her body and caused her death. The crime was alleged to have been committed on the twenty-sixth day of June, 1886, and the evidence showed it to have been perpetrated at about 4 o'clock in the morning at No. 163 Hester street, New York, in a building occupied by one John McCarthy as an assignation house. The witnesses of the homicide were principally persons of disreputable character, and their evidence was very contradictory and incapable of being altogether reconciled or harmonized. In this conflict of testimony, it became the duty of the jury to determine which of the versions given by the eye-witnesses of the transaction was the true one, and the defendant was found guilty of the crime. Upon appeal the general term of the supreme court affirmed the conviction. Subsequent to June 20, 1887, this appeal was taken from the judgment of affirmance.

By chapter 493 of the Laws of 1887, section 528 of the Code of Criminal Procedure was so amended as to vest this court with jurisdiction to examine the record, and determine,upon the whole case, whether it is satisfied ‘that the verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below.’ This provision has very much enlarged the jurisdiction and the labors of this court, and requires us to review the facts in every capital case, and to determine whether, upon all of the evidence, there is, in our opinion, good and sufficient reason for setting aside the verdict of the jury and granting a new trial. The powers conferred by this section are similar to those formerly given to this court in certain cases by chapter 337 of the Laws of 1855, as amended by chapter 330 of the Laws of 1858, and to the supreme court by section 527 of the Code of Criminal Procedure. O'Brien v. People, 36 N. Y. 276. It seems to have been the intention of the legislature to vest this court with power, in its discretion, to disregard the neglect or omission of the accused to take the customary objections and exceptions on a trial, and grant him a new trial when such a course would be in furtherance of justice and conduce to the humane administration of the law. These provisions, however, do not authorize the appellate court to disregard the effect of valid exceptions taken by an accused party on the trial, ( O'Brien v. People, supra,) or excuse such party from complying with the settled rules of practice applicable to the trial of criminal cases, or exempt him from the duty of presenting the usual and ordinary questions arising on the trial of a case in the form and manner heretofore pursued in the trial of indictments. The omission of counsel for the defendant to make the proper objections and take exceptions to alleged erroneous proceedings would, under the amendment referred to, seem to deprive him of the privilege of claiming, as matter of right, in the appellate court, the benefit of errors occurring on the trial, and remit him to an appeal to the discretionary power of the appellate court which arises when, upon an examination of the whole case, it appears affirmatively that injustice has been done to the accused in the result arrived at by the trial court.

In the discussion of the broad question in the appellate tribunal as to whether substantial justice has been done to the accused upon his trial, it is open to him now to urge a review upon the merits of the case, regardless of exceptions, but, in reviewing the various incidental questions arising during the progress of the trial, and the exceptions taken to the admission or exclusion of evidence, or to the instructions of the court, regard must still be had to the established rules of law regulating such proceedings. The effect to be ascribed to provisions similar to the one in question in appellate courts has been heretofore the subject of some discussion in the cases, but without eliciting any certain or well-defined rule as to the precise extent and character of the jurisdiction conferred by similar provisions. Wilke v. People, 53 N. Y. 525;Levy v. People, 80 N. Y. 336;Ferris v. People. 35 N. Y. 125;People v. McCann, 16 N. Y. 58;O'Brien v. People, 36 N. Y. 276. The general rule derived from these authorities seems to be to leave it discretionary with appellate courts whether they will give effect to claims of error or illegality in particular cases, where the error is not pointed out on the trial, and objections and exceptions taken thereto in the usual manner.

A brief statement of the leading features of the evidence will serve to show the reasons which have led us to approve the verdict of the jury. That Bridget Garrity was murdered at the time and place alleged, and in the manner charged, was not disputed on the trial, and the only issue of fact tried was whether the fatal shot was discharged by the defendant or some other person. The defendant attempted to show that it was fired by John McCarthy. The uncontradicted evidence showed that about two weeks previous to the homicide an altercation arose between the defendant and McCarthy in the streets of New York, and McCarthy, upon that occasion, discharged two pistol shots at the defendant, with an apparent intent to kill him, but in fact inflicted no injury upon him. It does not appear that these parties met again until the morning of the murder. The crime charged in this indictment was committed upon the first floor of McCarthy's house. This consisted of a hall and a front and back room lying along-side of and to the left of the hall. The hall extended from the front to the back of the house, and two doors opened therefrom into the back and front rooms, respectively, and these rooms opened into each other by large folding doors. The defendant's version of the transaction is that about midnight on June 25, 1886, he met another man and two women, one of whom was the deceased, at a drinking saloon in Worth street, and they continued together from that time until after the shooting. For several hours of the night they wandered from one saloon to another, drinking frequently at each place visited, until finally they reached McCarthy's house, and, without any apparent or plausible reason for doing so, entered it, the deceased going first, followed by the defendant and their companions. Immediately upon entering the hall, they advanced through it to the door opening into the front room, and entered it, Garrity leading the way, and, as she stepped into the room, a shot was fired by some one inside which killed her. The defendant did not recognize the person who fired the shot, but his male companion testified that it was McCarthy. They both testified that Driscoll did not fire a pistol at all that night. Driscoll testified that after this shot he immediately ran away, and remained in hiding until discovered and arrested by the officers of the law. There was much direct evidence given on the part of the people to controvert this version of the crime, and the circumstances seem to us to contradict it, and point with much force to the defendant as its perpetrator.

At the time of the shooting, six or eight persons occupied the rooms where it occurred. Some of them were asleep, others were playing cards, and still others were watching the game, and engaged in conversation. McCarthy was in the front room, and he testified that when the door opened and the deceased entered he saw the defendant behind her, and immediately advanced to the door, and shoved him out of the room; that immediately thereafter he saw a pistol protruded through the door and fired into the room; that he immediately ran between the folding doors through the back room and jumped out of the window into the yard behind the house. From there he entered the basement, and while there heard a second shot fired, apparently in the hall above. That he went directly from the basement into the upper hall and out into the street, and, after being absent about 15 minutes, returned to the scene of the affray, where he found the deceased lying on a bed in the back room, and a physician and some policemen standing about the bed. McCarthy also testified that he did not fire off a pistol during the affray.

One Carrie Wilson testified that she was in the hall when Garrity and Driscoll entered, and that they advanced to the door of the front room, which Garrity opened and entered, and, as she saw McCarthy, gave a signal to Driscoll, who advanced to the door and fired a pistol into the room; whereupon the door was crowded back against him, and he then went to the door of the back room, and, after forcing it open, pointed the pistol into the room and fired again; that the ball discharged therefrom struck Garrity, whom she could then...