People v. Flanigan

• Citation: 174 N.Y. 356,66 N.E. 988
• Parties: PEOPLE v. FLANIGAN.
• Decision Date: 07 April 1903
• Court: New York Court of Appeals

174 N.Y. 356

66 N.E. 988

PEOPLE

v.FLANIGAN.

Court of Appeals of New York.

April 7, 1903.

Appeal from Court of General Sessions, New York County.

Arthur Flanigan was convicted of murder in the first degree, and appeals. Affirmed.

Hugh O. Pentecost, for appellant.

William Travers Jerome, Dist. Atty. (Howard S. Gans, of counsel), for respondent.

VANN, J.

The indictment contains but one count, which, in the common-law form, alleges that the defendant, on the 29th of October, 1900, at the borough of Manhattan, in the county of New York, ‘willfully, feloniously, and of his malice aforethought did make an assault’ upon one Hugh McGovern with an iron bar, and did therewith inflict a mortal wound upon the said McGovern, of which he died on the same day.

Upon the trial it appeared that on the 17th of October, 1900, the defendant was committed by a magistrate of the city of New York to the custody of the warden and keeper of the city prison upon a charge of burglary. Although confined at first in a cell by himself, owing to the crowded condition of the prison he was soon transferred to the cell of another colored man called Emerson, alias Johnson, who had been committed upon a similar charge. The defendant was a friend of Emerson, and, as one witness testified, had asked to be put in his cell. On the afternoon of Saturday, October 28, 1900, two steel saws, concealed in a pie, came into the possession of one of these prisoners while they were thus confined together, by means of which two bars of the door of their cell were so nearly severed at either end as to be easily removed, and during the next night, acting in concert, they escaped from the prison. While they were engaged in the effort to escape, Hugh McGovern, a night keeper in the prison, was killed by one or both of these men. The defendant fled to the city of Pittsburg, where he was arrested in September, 1901, but the rope, made out of bedclothing, which Emerson used in order to reach the ground from a high window, broke under his weight, and he was instantly killed.

There is a conflict in the evidence as to what transpired after the two prisoners broke out of their cell into the hall of the prison. A prisoner named Wilson slept in an unlocked cell opening into the same hall. He had been committed at his own request, and was known as a ‘trusty,’ which apparently means ‘trustworthy,’ and, owing to his good behavior as a prisoner, was allowed unusual privileges. He testified that he went to bed about 9 o'clock on the night of the homicide, and was awakened by the city of ‘Murder! Watch!’ He got up at once, hurriedly slipped on his pantaloons, and went around the corridor of the prison, where he saw McGovern, who was the keeper of the tier in which the defendant was confined at night, struggling with the defendant and Emerson. He saw both of them strike McGovern, and cried out, ‘What the hell are you fellows doing?’ when they left McGovern, and the defendant said, ‘We will do you up, too, you son of a bitch.’ Both of the men rushed over to him, and each struck him with a club at the same time, and knocked him senseless. When he came to, there was a blanket over his head.

Another prisoner named Mescall, who slept in an open cell on the tier above the defendant, testified that he heard somebody ‘hollering very loud, like being in great agony,’ and, rushing in that direction, looked down over a railing on the tier beneath, where he saw the defendant and Emerson both strike the witness Wilson. Wilson fell, and Mescall heard Emerson say to the defendant, ‘Stop! stop! that is enough.’ They struck Wilson ‘with something with a rag around it.’ The witness was frightened, and ran away.

Early the next morning McGovern was found dead in the hall, where Wilson swore he saw him attacked by Emerson and the defendant, with four distinct scalp wounds, two on the top of the head, and two on the back superior curve line. These wounds ‘were made by blows, and not by a fall.’ The cause of death was ‘fracture of the skull and cerebral hemorrhage.’ McGovern was lying on his back. His arms were tied closely to his breast with a cot rope and part of a sheet, his feet were tied in a sheet, and his head was wrapped in a blanket. Near by him there was a pool of blood ‘as big as the head of a barrel.’ The rope was made out of parts of the bed in the cell occupied by the defendant and Emerson, and of another bed in an adjoining cell that was unoccupied that night. Wilson was found near McGovern, tied hand and foot in the same way, with a rope made out of materials obtained from the same source. He was senseless, and his head, cut and bleeding, was muffled in a blanket. An iron bar, sawed from the door of the cell occupied by Emerson and the defendant, was lying near the body of McGovern, wrapped in a piece of an old undershirt which was saturated with blood. Another iron bar was found across an outside window with a rope, made from parts of the two beds, attached to it and hanging down toward the ground. One of the bars of this window had been sawed and bent until an opening was made large enough for a man to get through. Beneath the end of the rope, which was about 25 feet from the ground, on a pile of iron outside of the prison wall, and near to it, Emerson was found, dead. McGovern's watch and money, the keys to the cells which he ordinarily carried, and a broken saw were found in Emerson's pocket.

The defendant testified in substance as follows: ‘This escape was made on Sunday night.’ The saws were sent in a large pie to Emerson, who showed them to the defendant, but would not let him take them. Emerson began to saw the bars shortly after dark Saturday night, and finished about 11 o'clock Sunday night. He then made a rope out of the bed and bed clothing, and left it lying in the cell. After the keeper made his rounds at about midnight, Emerson broke off the bars from the cell door, went out in the hall, and began to saw the bars of the outside window. When he finished, he came back to the cell where the defendant still was, and helped him get out. He then wrapped the two bars which he had sawed from the door of the cell in some clothing, and used them to pry out the bar he had sawed in the outside window. In the meantime he had asked the defendant if he would escape, and his answer at first was, ‘Yes,’ then ‘No,’ and finally ‘Yes,’ if Emerson completed the job so that they could escape without being detected. While the defendant was putting on his shoes outside of the cell and Emerson was prying the window bar, the keepers' gate clicked. Emerson at once jumped down, and, as the defendant continued, ‘whatever he did then, he must have struck the keeper, for I heard the keeper holler ‘Murder! Murder! Watch!’ I, being in the act of putting on my trousers, threw them on, and, putting on my suspenders quickly, ran to the end of the corridor where the occurrence was. I saw the keeper lying there unconscious on the floor. In the meantime this other man, Wilson, came around the corner. * * * I don't know of anything being said by anybody, or any vile language being used. The only thing I heard was, when I seen this man lying on the floor, I said, ‘My God!’ I didn't strike McGovern. I didn't strike anybody. I told Emerson that I would escape, but I was not willing to be implicated in no murder, or nothing of that kind. * * * After I got around the corner there, and saw McGovern lying on the floor, and Emerson standing over him, the trusty appeared-a man appeared. I didn't hear nobody saying nothing. After that I sat down on the steps which lead from the first tier. This trusty was knocked down. I seen him knocked down. Witnessed that myself. I sat right where I paused when I seen this man lying on the floor. * * * I never struck McGovern or the trusty. I sat down to lace my shoes. My shoes was already on. I was nervous. It taken me at least-I might have laced, put on ten pairs of shoes the time it taken me to lace those, because I was nervous. My fingers was numb, and everything, from witnessing this sight. When I got up from there, I walked over to the cell where I had left my coat and vest lying outside of the cell, put on my vest, then my coat, and then walked over to the window, and, as I did, Emerson appeared, from where I don't know. When I left the steps, Emerson was leaning over the keeper. Emerson rushed in with his coat half on and half off, only just one sleeve in it; and I said, ‘Wait a minute; that sheet will never hold; never in the world;’ and he said, ‘Yes, it will; it is tight;’ and out of the window goes the rope, and I said, ‘It will never hold; tie that other end,’ just that other end where the spreads are. I says, ‘Tie this end,’ and I went to tie it, and he said, ‘No, that will hold,’ and he pushed me aside. * * * I stood there to give Emerson time enough to go down to the bottom, as I thought; * * * got hold of the rope, and pulled it up. * * * It had broken.' He then described his own escape by making a new rope out of materials procured from the unoccupied cell, and reaching the ground at a different point from Emerson.

On his cross-examination he testified that Emerson and he had talked about the escape ‘somewhere round about ten days,’ but he first made up his mind to escape in the early morning of October 29th. While before that he was opposed to making an escape, and knew that Emerson intended to get out, he did not inform the keepers. He did not assist Emerson in making the rope, but did not clearly remember what he was doing himself while the sawing and other preparations were being made. At one time he said that the last he saw of the two bars was when Emerson was prying at the window with them. He did not assist Emerson in escaping, nor had he ever asked to be transferred to Emerson's cell. When the door clicked, Emerson stopped to listen with the two bars in his hands. At this time the defendant was putting on his clothes, and, when Emerson...