People v. Kelly

• Decision Date: 16 April 1889
• Citation: 21 N.E. 122,113 N.Y. 647
• Parties: PEOPLE v. KELLY.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 647

21 N.E. 122

PEOPLE

v.KELLY.

Court of Appeals of New York.

April 16, 1889.

Edwin Hicks, for appellant.

Frank Rice, for respondent.

RUGER, C. J.

The defendant was indicted for the crime of murder in the first degree, for killing one Eleanor O'Shea, by striking her upon the head with a hammer, at the town of Geneva, in the county of Ontario, on the 6th day of November, 1888. At a trial in the court of oyer and terminer, held in said county in December, 1888, the defendant was convicted of the crime charged, and, in pursuance of the provisions of the Code of Criminal Procedure, as amended by chapter 493 of the Laws of 1887, has appealed directly to this court from the judgment entered upon his conviction. Upon such an appeal we are required to examine the whole case, and determine whether, in our opinion, ‘the verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether any exceptions shall have beek taken or not in the court below.’ We do not think that this provision was intended to authorize this court to review findings of fact, founded upon sufficient evidence, made by the jury, or to reverse judgments simply because of a difference of opinion on the facts between this court and the jury; but was intended to invest the court with the power of ordering a new trial in cases where, upon a consideration of the whole case, it is manifest that injustice has been done, although the question has not been properly raised by exceptions in the court below. People v. Cignarale, 110 N. Y. 23, 17 N. E. Rep. 135. This provision undoubtedly gives great latitude of authority to the court in granting new trials to convicted offenders, but it is an authority which must be exercised under the restraint of settled rules, and in accordance with established principles of law regulating and defining the duties of appellate tribunals in reviewing the judgments of trial courts.

It is claimed that a consideration of the evidence shows a lack of proof of that premeditation and deliberation in the commission of the offense which is required by the statute to sustain a conviction.

There is no serious question in the case but that Eleanor O'Shea came to her death in consequence of a blow inflicted with an iron hammer upon her head by John Kelly, or but that the blow was intentionally given for the purpose of inflicting serious bodily injury upon said O'Shea. The principal question in the case is the determination of the particular intent with which the defendant struck the blow. This can be ascertained only by an examination of the facts proved on the trial. The evidence on the subject is given almost wholly by the witness Mahar, who was apparently friendly to the defendant, and betrayed a slight, but perceptible, disposition, not only by his evidence, but also by his failure to recollect inculpatory circumstances, to favor him in his version of the transaction. The affray occurred about 10 o'clock in the evening, at the house of one George Kippen, who was a farmer living about two and one-half miles from the village of Geneva. The household consisted, at the time in question, of George Kippen, Margaret Kippen, his daughter, aged about 30 years, Eleanor O'Shea, his housekeeper, aged about 46, and one Mahar, the witness, who was of the age of about 68 years. The defendant was the foreman of the farm, and had worked for Kippen in that capacity about 15 years. He was a married man, with children grown up, and was then living in a tenant-house on the same farm, about 80 rods distant from Kippen's house, but was separated from his family, and took his meals generally at Kippen's. On the day in question he had been at Geneva through the afternoon and evening, and returned to Kippen's about 9 o'clock p. m. He went directly to the barn to put out his horse. Margaret Kippen followed him there with a lantern, leaving O'Shea and Mahar in the kitchen of the house. Margaret and O'Shea had immediately, previous to defendant's return, had an angry and violent controversy growing out of a charge made by O'Shea that Margaret went to the barn to see defendant for improper purposes, and forbidding her from going there any more. Margaret insisted upon going, and did so. After the lapse of a few minutes Margaret returned to the house, and was soon followed by defendant. O'Shea then again commenced her imputations upon Margaret's chastity, and accused her of being unduly intimate with Kelly. Kelly then asked her what authority she had to charge him with such conduct, and she replied that she had Mr. Kippen for authority, and what she knew herself, and what Margaret had told her. Kelly then asked ‘do you say that I am a whoremaster?’ and she rose up and said, ‘Yes, I do.’ Kelly immediately struck her with his fist, knocking her down near the stove, in the center of the north side of the room, and, while she was on the floor, kicked her on the breast, head, and shoulders with his boot. She then ran up hurriedly, and seized a tea-kettle standing on the stove, and exclaimed, ‘I will scald you;’ and struck with it at Kelly. Thereupon a squabble ensued between Kelly and Margaret on one side, and O'Shea on the other, which resulted in their getting the tea-pot away from her. O'Shea then assaulted Margaret, and shoved or drove her into the hall through a door near the north-east corner of the kitchen, and said to her: ‘I will smash you if you don't keep your hands off me.’ It would appear that Margaret remained in the hall until after the fatal blow was struck. About this time Mahar said to Kelly that he had better quit, and approached him near the middle of the room, and Kelly told him ‘to keep away.’ Mahar then put up his hands, and Kelly put his hands against those of Mahar's, and crowded him back into the north-west corner of the room, where he remained during the rest of the affray. When O'Shea returned from the hall, and, passing Kelly, went to the south-west corner of the room without making any remarks, Kelly stood in the north-east corner near a mantel, upon which were two or three hammers, usually kept in that place. After a brief interval he walked coolly across the room to the opposite corner where O'Shea stood, and, speaking low and quietly, said: ‘Can you prove what you said? Do you say I am a whoremaster?’ She says, ‘I do;’ upon which, in the language of Mahar, Kelly ‘up with his hand, and struck her with the hammer on the head.’ O'Shea sank to the floor on her knee, and Kelly poked at her with his foot. O'Shea then got up, and says, ‘Mr. Mahar, you know all this;’ and struggled to a chair standing on the south side of the room, near the table, a few feet from where she was struck, and sat down. While sitting there Margaret came up with a stick of stove-wood and struck at her several times, probably hitting her face, breast,...