People v. Kane

• Decision Date: 05 January 1915
• Citation: 107 N.E. 655,213 N.Y. 260
• Parties: PEOPLE v. KANE.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 260

107 N.E. 655

PEOPLE

v.KANE.

Court of Appeals of New York.

Jan. 5, 1915.

Appeal from Supreme Court, Trial Term, Kings County.

Robert Kane was convicted of murder in the first degree, and from the judgment entered on the verdict appeals. Affirmed.

Edward J. Reilly, of Brooklyn, for appellant.

James C. Cropsey, Dist. Atty., of Brooklyn (Ralph E. Hemstreet, of Brooklyn, of counsel), for the People.

WILLARD BARTLETT, C. J.

On the afternoon of May 20, 1914, at 35 Varick avenue in the borough of Brooklyn, the defendant inflicted two serious pistol-shot wounds on the body of Anna Klein, a young married woman about 22 years of age, who was then living with her grandmother at the house where the shooting occurred. Anna Klein was pregnant at the time. The evidence warranted the jury in finding, and their verdict shows they must have found, that the pistolshot wounds inflicted by the defendant caused a miscarriage, the miscarriage caused septic peritonitis, and the septic peritonitis thus induced caused Anna Klein's death on the third day after she was shot.

The defendant, who described his occupation as that of an engineer's assistant, was 29 years old at this time, and had served as a first-class fireman in the United States navy. Upon leaving the navy, in 1911, he married a girl in New York, but left her at the end of their first week of marriage; and thereafter he appears to have lived with his wife only occasionally and for comparatively brief periods of time. Anna Klein was also married but did not live with her husband. The defendant made her acquaintance while he was working for the Long Island Railroad Company at its freight station in Brooklyn, and illicit relations were soon established between them, and continued in St. Louis where they went to live. In 1913 they returned to Brooklyn, Anna Klein going to her mother's and the defendant rejoining his wife. Inspired by jealousy, the wife on one occasion attempted to shoot Anna, when the defendant, according to his account of the occurrence, tore the revolver from her hand and thus defeated her purpose. The defendant, nevertheless, was arrested for participation in the attempted assault by his wife, and was detained in jail eight days, when he was discharged, upon the refusal of the grand jury to indict him. It was the theory of the prosecution that the defendant regarded Anna Klein as largely responsible for his imprisonment on this occasion, and that this was one of the causes which led him to determine to kill her.

He did not return to work after thus being in custody; but, according to his own testimony given upon the trial, he spent his time roaming around and drinking, being disgusted and discouraged at the treatment he had received. Anna Klein's grandmother, at whose house the shooting took place, testified that the defendant came there on the night of the 16th of May, and that she ‘chased him out.’ She saw him subsequently on the same night asleep in front of a neighboring liquor saloon. He admits having purchased a revolver about a fortnight before the shooting, though he was unable to assign any reason for buying it.

The circumstances of the shooting were related by Anna Klein in her dying declaration as follows:

‘On Wednesday, May 20th, Robert Kane was standing on the corner of Varick avenue and Harrison place in the saloon vestibule. About 3 o'clock when I saw him, Robert Kane, standing there, I went back home, and told my grandmother that Robert Kane was there. Then I wanted to go out to my mother's, who lives at 31 Varick avenue. As I opened the door to go out into the street, Robert Kane opened the door at the same time. As soon as he got into the vestibule, he pulled out a gun from his pocket and says to me, ‘I want to speak to you.’ I said, ‘You can speak to me if you do not raise a disturbance.’ So he said he wanted to talk to me in private, and I then said: ‘You can't. My grandmother and everybody else must be there.’ He kept on talking that I could not call a policeman as I did the last time. My grandmother then came out and asked if he had a pistol. I said, ‘Yes,’ and my grandmother then went out and called my mother. My mother then chased him out of the vestibule. As he stepped out of the vestibule, he turned and fired four shots out of the vestibule. Three shots took effect. Robert Kane then walked to the saloon corner from where he came. I don't know what happened then. I then identified him as Robert Kane, the man who shot me.'

This narrative of the tragedy was corroborated by the mother and grandmother, both of whom were eyewitnesses, and also by Mrs . Mary Meyer, of 31 Varick avenue, who went over with the mother to No. 35, when she learned that Robert Kane was there. This witness stated that he was standing ‘right close’ to Anna Klein when he shot the first time, having hold of her elbow with his left hand. The mother testified he fired one shot at her daughter after she had fallen to the ground.

The defendant, testifying in his own behalf, declared that the shooting was all an accident; that, although he fired into the vestibule, he did not intend to kill anybody, but merely wanted to scare the persons there and keep them in, and thus prevent his own arrest.

The jury rejected this explanation of his conduct. In doing so they were doubtless influenced by the statementsmade by him just after the shooting, in answer to questions by Assistant District Attorney Conway of Kings county at the Stagg Street police station. The defendant, after being fairly warned that anything he said might be used against him, identified his revolver as the weapon with which he had fired five times at Anna Klein on that day. The following are extracts from the stenographic transcript of his statement on that occasion:

‘Q. That is the revolver you bought two weeks ago? A. Yes, sir. Q. Did you carry this revolver around with you for the last two weeks? A. Yes, sir. Q. You never left it at home? A. Yes, sir; I left it at home. Q. When did you put it in your pocket after you left it at home? Yesterday? A. This morning when I went out. Q. Did you tell your wife where you were going? A. Yes, sir. Q. What did you tell her? A. Told her I was going over to Jersey, to take that gun over to Jersey. Q. That was not true? A. No sir. Q. What were you going to do? A. I was going to come over here to Brooklyn and shoot Anna Klein with it. * * * Q. What did you say to her before you shot her? A. I went in there and said ‘I want to speak to you by yourself a minute.’ Q. What did she say? A. She said: ‘All right. Wait until I get my grandmother and grandfather out of here.’ Q. What did you say? A. I didn't say nothing; I just stayed there for a couple of minutes. Q. Then what happened? A. Then I saw the grandfather stick his head out of the window to call a cop, to have me arrested again, and before I got arrested and go to jail for nothing, like I did the other time, I would do a good job and do something to go to jail for. * * * Q. What were you going to do with the five extra shells? A. I was going to use them if I had a chance to. Q. On whom? A. On anybody that got in front of me. Q. That is, on anybody that prevented you from escaping, from getting away? A. I do not know about that. I had them three shells, and I had seven with the gun, and I had five in my pocket. I do not know whether I would have used them or not. Q. When you told Anna Klein you wanted to speak to her for a minute, did you ask to see her alone? A. Yes, sir. Q. What was your idea in getting her to see you alone? A. I just wanted to speak to her. Q. Did you think you would have a better chance of getting away? A . No, if I wanted to kill anybody, I would kill them if there was a regiment around me. Q. That was the way you felt to-day? A. That was the way I felt, yes. I know what a man will get, if he commits murder. Q. What will he get? A. The electric chair. Q. You knew that before you shot her? A. I read it enough in the newspapers to know that a man that commits a deliberate murder, he will get the electric chair. Q. You were willing to take that chance? A. Yes, I do not look for any sympathy whatever. Q. But you do not want to tell me why you shot her? A. I would not tell you that. You will do me a great favor if you do not try to make me.'

At this point the assistant district attorney very properly ceased to inquire further, having already assured the witness that he was not required to answer any questions to which he objected.

It is true that when the defendant came to testify he denied having made some of the responses we have quoted which bore most strongly against him. He did not remember saying he was going to come over to Brooklyn and shoot Anna Klein, and he swore positively that he never had any such intention. According to his account of the occurrences in the vestibule, Anna Klein readily assented to the interview which he desired, when her mother appeared on the scene-the grandfather and grandmother having retired into the background-and threatened the defendant with arrest, at the same time seizing him by the arm. She was about starting for a policeman when he shot into the vestibule ‘to scare them,’ as he said, and without intending to kill any one. He admitted having a faint recollection of being brought back to Anna when she was lying down, but could not remember things thoroughly after that.

[1] In this condition of the record, it was for the jury to determine which version of the occurrence was the true one-that given by the defendant on the witness stand or that presented by the case for the prosecution, including the inferences to be drawn from his admissions to the assistant district attorney, as recorded by the stenographerat the time they are alleged to have been made. We cannot say that they were wrong in concluding that the latter represented the truth beyond all reasonable doubt.

[2] The chief position assumed by the defense, however, upon...