People v. Friedman

• Citation: 98 N.E. 471,205 N.Y. 161
• Parties: PEOPLE v. FRIEDMAN.
• Decision Date: 02 April 1912
• Court: New York Court of Appeals

205 N.Y. 161

98 N.E. 471

PEOPLE

v.FRIEDMAN.

Court of Appeals of New York.

April 2, 1912.

Appeal from Supreme Court, Trial Term, Monroe County.

Ralph Friedman was convicted of murder in the first degree, and from a judgment entered thereon, from an order overruling a demurrer to the indictment and orders denying his motion for a new trial in arrest of judgment and denying a motion to inspect the minutes of the grand jury, he appeals. Affirmed.George D. Forsyth, for appellant.

John W. Barrett, Dist. Atty., for the People.

WILLARD BARTLETT, J.

Some time in November, 1910, one Jacob Kuhn and the appellant, Ralph Friedman, entered into a conspiracy to obtain money feloniously and by force, in the nighttime, from the person or custody of George A. Schuchart, a grocer in the city of Rochester. The conspiracy was carried into effect between half past 9 and half past 10 o'clock in the evening of November 15, 1910. One of the conspirators waited in the street outside the store; the other entered the store to perform the more active part of the contemplated robbery or larceny. A struggle ensued within between the grocer and his assailant during which three revolver shots were fired, one of which inflicted a mortal wound upon Mr. Schuchart. The appellant, Friedman, who claims to have been the one who waited outside, testified that he entered the door upon hearing the three shots and found Kuhn and Mr. Schuchart there engaged in a personal encounter. He states that he reached his arm over to knock the revolver up, when a fourth shot was fired which penetrated his left wrist. The conspirators then fled, leaving Mr. Schuchart dying upon the floor of his grocery. The theory of the prosecution was that the appellant, Friedman, shot and killed Mr. Schuchart in the store, accidentally shooting himself through the wrist in the struggle, while Kuhn waited outside and became liable for the murder as co-conspirator in the felonious attempt to rob or steal. In the case of People v. Kuhn, 98 N. E. 1110, now under consideration at the same time with this appeal, the contention in behalf of the people is the same, and the trial judge charged the jury therein that they could not find Kuhn guilty of actually doing the shooting, although they might convict him of murder in the first degree, as they did.

I do not propose to discuss the evidence in this case further than is absolutely necessary in considering such of the exceptions as are sufficiently serious to require notice. It is enough to say that the proof is ample to sustain the verdict.

[1] The grand jury had jurisdiction to indict the defendant notwithstanding the pendency of certiorari proceedings in his behalf to review the action of the magistrate by whom he had previously been committed to await the action of the Supreme Court. People ex rel. Phelps v. Westbrook, 12 Hun, 646. The objection that for this reason the indictment should be dismissed as premature is untenable.

[2] The indictment is in the common-law form and authorized the introduction of evidence to establish the defendant's guilt of murder in the first degree, committed either with a deliberate and premeditated design to effect the death of the person killed or without a design to effect death while engaged in committing or attempting to commit a felony. People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582. There was sufficient evidence to sustain a finding that the appellant personally shot and killed George A. Schuchart with a deliberate and premeditated design to effect death. The proof also suffices to uphold the conviction even if the killing was unintentional, on the ground that the homicide was committed by persons engaged in a common attempt to commit a felony.

[3] At the close of the charge, counsel for the defendant asked the court to instruct the jury as follows: ‘If the jury believe that the defendant, Friedman, and Kuhn did confederate and agree together to enter the store of Schuchart and take money from it by stealth, and that the scope and plan of execution of their unlawful enterprise did not involve the use of force or violence which might result in the taking of human life, then the defendant is not responsible for the act of Kuhn in taking human life if they find that the defendant did not shoot and kill Schuchart.’

It is contended that the refusal to charge this request was error. I think not. The learned trial judge had previously charged the jury correctly on this subject, as follows: lows: ‘If they [Friedman and Kuhn] went to the store of Schuchart merely to steal his money, that would not necessarily mean that their errand was of a dangerous, homicidal character, or that it necessarily involved the use of violence which might result in the taking of human life unlawfully. But if they confederated together to commit a felony at Schuchart's store, then it is left to you to say whether or not they intended the natural and probable consequence of their act, and each one would be responsible for the acts of the other in carrying out their joint enterprise.’

If the natural and probable consequence of the common enterprise was the killing of Mr. Schuchart in case of resistance on his part, the defendant was liable for murder in the first degree, although he did not do the actual...