People v. Garmo

• Decision Date: 05 August 1904
• Parties: PEOPLE v. DE GARMO.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 130

71 N.E. 736

PEOPLE

v.DE GARMO.

Court of Appeals of New York.

Aug. 5, 1904.

Appeal from Supreme Court, Appellate Division, Fourth Department.

William M. DeGarmo was convicted of manslaughter, and from an order of the Appellate Division (76 N. Y. Supp. 477) appeals. Reversed.

George D. Forsyth, for appellant.

John F. Connor, for the People.

WERNER, J.

The indictment herein charges the defendant with the crime of manslaughter in the first degree, and the specification is that on the 25th day of October, 1900, the defendant, ‘with force and arms, and while engaged in committing a misdemeanor on the person of one Marie Lennon, to wit, an assault, did then and there feloniously, in the heat of passion, and in a cruel and unusual manner, strike, beat, kick, and wound said Marie Lennon upon the body and head, and did otherwise injure her,’ inflicting one or more mortal wounds, which caused her death. The defendant demurred to the indictment on several grounds. The demurrer was overruled. The defendant was tried, convicted, and sentenced to imprisonment for 20 years, and the judgment of conviction was unanimously affirmed by the Appellate Division. 76 N. Y. Supp. 477.

Among the alleged errors relied upon by the defendant as grounds for the reversal of the judgment herein there are three that may be summarily disposed of before we reach the real difficulty in the case. (1) The unanimous affirmance by the Appellate Division precludes us from considering the trial court's refusal to grant the defendant's motion to advise an acquittal based upon the alleged insufficiency of the evidence. People v. Helmer, 154 N. Y. 599, 49 N. E. 249. (2) As there was no exception taken to the charge of the trial court to the jury to the effect that the defendant could not be found guilty of any lesser degree of manslaughter than the first, we cannot consider the point, and do not pass upon it. Code Cr. Proc. § 528. (3) The demurrer to the indictment is not tenable. The indictment is drawn in substantial compliance with the provisions of the Code of Criminal Procedure (sections 278, 279, 284). Its alleged imperfections are mere matters of form, which have no tendency to prejudice the substantial rights of the defendant. Section 285.

A more serious question is raised by the exceptions to the admission of certain evidence that is claimed to have been not only incompetent, but seriously and substantially prejudicial to the defendant. The defendant was a witness in his own behalf. Upon his direct examination he testified as to the occasion mentioned in the indictment, and nothing else. On his cross-examination he was interrogated as to a number of alleged occurrences which had no legal connection with the homicide, and his testimony thus elicited was then permitted to be contradicted by witnesses called in rebuttal for the prosecution. As a part of the defendant's cross-examination he was asked: ‘Q. Do you remember the time when they [George Hunt and Bert Chase] were there, one or both of them, that you picked up a hammer, and threw it at Marie Lennon, striking about six feet from her? A. No, sir; I do not. Q. Did you? A. No, sir; I did not. Q. Do you remember an occasion when, in the presence of Ora Messerve, little Marie Lennon appeared, and in speaking of her clothes as dirty she pronounced the word ‘dirky,’ whereupon you stated, ‘I will teach you to pronounce words right!’ Do you remember that? A. No, sir; I do not. Q. Did you at that time (in the presence of Messerve, and shortly before the 26th of October) strike her on the jaw with your fist, forcing her against the wall? A. No, sir; I never struck her with my fist. Q. And never forced her against the wall? A. No, sir. Q. And at the same time did not Messerve say to you, ‘What is the use of hitting her?’ and you said ‘They are put here to mind, and I will fix them so they will mind,’ or words to that effect? A. No, sir.' The defendant also testified on his cross-examination that he did not whip the child on Wednesday evening, after he returned from fishing with Chase, and that the child did not say, ‘Montie, stop, stop.’ When the defense had rested its case, Ora Messerve was called for the prosecution, and testified that she remembered an occasion ‘some time shortly prior to the death of Marie Lennon,’ when she had a conversation with the defendant. ‘Q. Do you remember an occasion when you were there at his cottage, or thereabouts, a short time prior to the death of Marie Lennon, when the little girl, Marie Lennon, appeared, and came to a point near by, and spoke of her clothes as dirty, pronouncing the word ‘dirky,’ and at the same time the defendant said, ‘I will teach you to pronounce words right,’ at the same time striking her on the jaw or face with his fist and forcing her against the wall?' The objection that this was incompetent and irrelevant was overruled, an exception was taken by defendant's counsel, and the witness answered, ‘Yes, sir.’ Then the witness was asked, ‘And upon the same occasion you stated to the defendant, ‘What is the use of hitting her?’ and the defendant said, ‘They are put here to mind, and I will fix them so they will mind.’' Subject to the same objection and exception, the witness answered, ‘Yes, sir.’ The witness Bert Chase was called for the prosecution, and testified as follows: ‘Q. Do you remember an occasion when you and George Hunt and the defendant were together at or near the De Garmo cottage on Conesus Lake, when the defendant picked up a hammer, and threw it at Marie Lennon, striking about six feet from her? A. Yes, sir. Q. Did you hear this child Marie Lennon cry that [Wednesday] evening? A. Yes, sir. * * * Well, sir, when we came in from fishing, we separated, and De Garmo went to his cottage, and I put the fish into the ice box, and went to the barn; and when I came back from leading my horse from the lake I heard cries coming...