People v. Lytton

• Citation: 257 N.Y. 310,178 N.E. 290
• Parties: PEOPLE v. LYTTON.
• Decision Date: 17 November 1931
• Court: New York Court of Appeals

257 N.Y. 310

178 N.E. 290

PEOPLE

v.LYTTON.

Court of Appeals of New York.

Nov. 17, 1931.

Kendall Lytton was convicted of first degree murder, and he appeals.

Affirmed.Appeal from Court of General Sessions, New York County.

Jacob H. Gilbert, Susan Brandeis, Harry Schulman, Alfred E. Smith, Jr., and Aaron A. Feinberg, all of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

CARDOZO, C. J.

The defendant has been convicted of murder in the first degree, the homicide having been perpetrated, it has been found, while the offender was engaged in the commission of a felony.

An earnest argument has been addressed to us that the verdict of the jury is contrary to the evidence. The identification of the defendant as the assailant and the fugitive, though made by disinterested witnesses, is said to be mere mistake, the product of suggestion or perhaps of officious zeal. The confessions to the police, an important, though not the sole basis for the finding that the assailant, when he shot, was engaged in the commission of a robbery, are repudiated as utter fabrications, concocted by the officers of the law after a futile endeavor to extort genuine confessions by resort to threats and violence. We have examined the record with the patient care exacted by the life that is at stake. Inconsistencies and uncertainties are not lacking altogether. They are not so vital as to condemn the verdict. A question of fact remains, involving an appraisal by a jury of the credibility of witnesses, and incapable of satisfactory solution by the study of the printed page. People v. Rodawald, 177 N. Y. 408, 419, 420,70 N. E. 1;People v. Taylor, 138 N. Y. 398, 34 N. E. 275;People v. Egnor, 175 N. Y. 419, 425,67 N. E. 906. ‘There can be no reversal of the judgment without breaking down the barriers that separate the functions of a jury from those of an appellate court.’ People v. Arata, 255 N. Y. 374, 375, 174 N. E. 758.

The judgment being upheld as to the facts, we are to consider whether the charge to the jury, unchallenged at the trial by objection or exception, exhibits fundamental error in its statement of the law. People v. Semione, 235 N. Y. 44, 46, 138 N. E. 500.

1. The defendant insists that upon a trial for homicide perpetrated in the commission of another and independent felony (People v. Moran, 246 N. Y. 100, 158 N. E. 35; Penal Law [Consol. Laws, c. 40], § 1044, subd. 2), a confession is insufficient evidence to sustain a conviction, though there is corroborating evidence of the fact of the homicide, unless there is also corroborating evidence, i. e., evidence apart from the confession, of the independent felony, and that the trial judge erred in charging to the contrary.

The charge is in accordance with the settled doctrine of this court, which deserves to be stated in an opinion, since arguments before us both in this case and in others disclose uncertainty as to the governing principle in the minds of members of the bar.

Code of Criminal Procedure, § 395, provides that a confession of a defendant ‘is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.’ The crime charged against this defendant is homicide, and the fact that a homicide has been committed is proved, without reference to a confession, by the testimony of eyewitnesses as well as by the discovery of the body, bearing tokens of a fatal wound. People v. Deacons, 109 N. Y. 374, 16 N. E. 676;People v. Brasch, 193 N. Y. 46, 58,85 N. E. 809. This being done, the requirement of the Criminal Code must be held to have been satisfied. The danger that a crime may be confessed when no such crime in any degree has been committed by any one is then sufficiently averted. People v. Deacons, supra. The considerations of public policy back of this section of the Code are near akin to those back of a section of the Penal Law to the effect that ‘no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof, and the latter beyond a reasonable doubt.’ Penal Law (Consol. Laws, c. 40) § 1041; People v. Palmer, 109 N. Y. 110, 114,16 N. E. 529,4 Am. St. Rep. 423. The corroborating evidence being sufficient to confirm the confession of a homicide, the Code does not require that it shall also confirm the confession of a homicide in any particular degree.

The defendant, indeed, does not contend that there would be need for corroborating evidence of degree if the case had been submitted to the jury under Penal Law, section 1044, subdivision 1, as a homicide committed with a deliberate and premeditated design to kill. The argument is that a different measure of corroboration becomes necessary when the case is submitted under subdivision 2 as a homicide effected without a design to kill by a person engaged in the commission of a felony. The distinction so drawn proceeds upon a false conception of the function of an accompanying felony in a prosecution for the crime of murder. Its function and its significance were clearly expounded by this court, speaking by Hiscock, Ch. J., in People v. Nichols, 230 N. Y. 221, 129 N. E. 883, a case substantially decisive of the question now before us. Homicide, we said, is not murder ‘without evidence of malice and of felonious intent and a depraved mind.’ People v. Nichols, supra, 230 N. Y. at page 226, 129 N. E. 883, 884. The malice or the state of mind may be proved by showing that the act was done with a deliberate and premeditated design to kill. The case will then fall under subdivision 1 (§ 1044). It may be proved by showing that the act was done by one then and there engaged in the commission of another felony. People v. Enoch, 13 Wend. 159, 174, 27 Am. Dec. 197; People v. Nichols, supra. The case will then fall under subdivision 2. In the one case as in the other a single crime is charged, the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing. People v. Enoch, supra. If there could be any doubt about this, the form of the indictment would be sufficient to dispel it. The rule is settled that there is no need to charge in an indictment that the homicide was wrought in the commission of another felony. It suffices to state in the common-law form that the defendant acted ‘willfully, feloniously, and with malice aforethought.’ People v. Nichols, supra; People v. Giblin, 115 N. Y. 196, 198,21 N. E. 1062,4 L. R. A. 757;People v. Osmond, 138 N. Y. 80, 33 N. E. 739. This would never do if the independent felony were conceived of as changing the identity of the crime instead of merely...