People v. Johnson

• Decision Date: 19 June 1888
• Citation: 17 N.E. 684,110 N.Y. 134
• Parties: PEOPLE v. JOHNSON.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 134

17 N.E. 684

PEOPLE

v.JOHNSON.¹

Court of Appeals of New York.

June 19, 1888.

Appeal from general term, supreme court, Fifth department.

Conviction of Charles Johnson of murder in the first degree. Defendant appeals. Section 412 of the Code of Criminal Procedure, referred to in the opinion is as follows: ‘The officers mentioned in the last section [those having charge of the jury to conduct them to view the place where the crime was committed,] must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.’

Corydon Rood, for appellant.

Frederick L. Allen, for respondent.

RUGER, C. J.

The defendant was jointly indicted with Edward Caldwell and Marcus Fish for the murder of John Walters on the 9th day of January, 1887. Johnson elected to have a separate trial, which was awarded to him, and took place on the 4th and 5th days of April, 1887, and resulted in his conviction of the crime of murder in the first degree. The conviction was affirmed by the general term of the supreme court, and the defendant appeals from the judgment of affirmance to this court. We have carefully examined the evidence appearing in the record, and are of the opinion that it fully supports the verdict of the jury. Indeed, no serious question is made but that Walters received a blow upon the head, inflicted by the defendant with an iron instrument, called a poker or stove-shaker, which fractured his skull, and occasioned his death. The only evidence given on behalf of the defendant was the testimony of one witness to the effect that Cronin, one of the people's witnesses, had made contradictory statements in respect to the affray about which he had testified. The attempted contradiction was quite inconclusive, and left the case made by the people's evidence substantially unaffected by opposing evidence. It is claimed, however, that certain rulings made by the court in the course of the trial and thereafter were erroneous, and for that reason the judgment should be reversed.

The evidence disclosed that the defendant, at the time of the homicide, was confined in the Seneca county jail upon two commitments,-one for the crime of burglary in the third degree, and the other for grand larceny in the first degree; that he, with certain other persons confined in the jail, conspired to break out therefrom by digging a hole through the walls, but, being unable for want of time to accomplish their purpose in this manner, they concluded to assault their jailers when opportunity offered, and thus escape. Their plan, as expressed by Johnson, was to ‘slug the sheriff,’ and thus overcome expected obstructions to their escape. About 9 o'clock P. M. of the 9th day of January, the deceased, accompanied by the sheriff and deputy-jailer, Cronin, proceeded in their customary manner to lock up the prisoners for the night. There were some 15 or 20 prisoners in the jail corridor, among whom was the defendant. Cronin unlocked the inside door of the jail, and swung it back into the corridor, where it was seized and held open by Fisk, one of the conspirators, while Johnson and Caldwell assaulted the approaching keepers. Walters immediately stepped on to the stairs leading down into the corridor, and as he was descending them, to the floor of the jail, was struck on the head with an iron instrument by Johnson, which felled him to the floor. Caldwell also struck him with a wooden club or stick. Johnson and Caldwell then passed up the stairway, and through the door, into a narrow entryway, where they were met by the sheriff, who, after a severe and prolonged struggle, succeeded in driving them at the point of a pistol, back into their cells; and it was for the crime thus effected that Johnson was indicted and convicted.

No questions are raised involving the merits in the case, and but few argued that we deem it necessary to consider, and those are quite technical in character.

1. The defendant challenged the panel of jurors upon the ground that they were not drawn from the body of the county, as provided by section 358 of the Code of Criminal Procedure. That section requires a trial jury to be formed ‘as prescribed by the Code of Civil Procedure.’ The general provision of the Code of Civil Procedure requires juries to serve in courts of record in the several counties in the state, except Kings and New York, to be drawn from the lists of persons prepared for that purpose by the county clerk from other lists of jurors returned to that officer by the various town officers in the several counties in the state charged with the duty of making such lists. Sections 1027-1062, Code Civil Proc. It is, however, further provided by subdivision 7, § 3347, that the above referred to provisions do not affect ‘any special provisions of law remaining unrepealed after May, 1877, whereby trial jurors are directed to be procured for a particular court of record from a particular locality, or whereby a county is divided into two or more jury districts.’ The county of Seneca was divided into two jury districts by section 3, c. 137, Laws 1822, and it was thereby enacted that the clerk of the county should keep the names of the jurors in such districts separate, and the jurors should be drawn for each court from the jury district in which the court is to be held. We cannot find that this law has been repealed, and are informed that from the time of its enactment it has been the uniform practice in the county of Seneca to make up jury-lists in the manner pursued in this case. The challenge to the jury was therefore properly overruled.

2. Upon the trial the defendant objected to the admissionin evidence of the commitments upon which he was confined in the jail. The point of this objection arises out of the fact that some of the counts of the indictment charged the homicide to have been committed while the defendant was engaged in the commission of, or an attempt to commit, a felony, to-wit, to escape from jail where he was confined upon a charge of felony. This charge, if sustained by proof, would render the killing of a human being, under such circumstances, the crime of murder in the first degree, without regard to the degree of deliberation or premeditation exercised in its commission. Section 85 of the Penal Code provides that ‘a prisoner who, being confined in a prison, or being in lawful custody, by force or fraud escapes from such prison or custody, is guilty of felony if such custody or confinement is upon a charge, arrest, commitment, or conviction for a felony;’ and section 686 enacts that a person who unsuccessfully attempts to commit a crime is indictable and punishable by imprisonment for not more than half the longest term prescribed, upon conviction for the commission of the offense attempted. A ‘felony’ is defined as a crime which is...