People v. Mayhew

• Decision Date: 13 October 1896
• Parties: PEOPLE v. MAYHEW.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 346

44 N.E. 971

PEOPLE

v.MAYHEW.

Court of Appeals of New York.

Oct. 13, 1896.

Appeal from supreme court, criminal trial term, Queens county.

Arthur Mayhew was convicted of murder in the first degree, and appeals from the judgment of conviction, and from an order entered on the minutes, denying motion for new trial. Affirmed.

John B. Merrill, for appellant.

Daniel Noble, Dist. Atty., for the People.

BARTLETT, J.

The defendant, a colored man, stands convicted of murder in the first degree under the second count of the indictment found against him, which charges that he killed one Stephen Powell while engaged in the commission of the crime of robbery. John Waynes, also a colored man, was jointly indicted with the defendant, but demanded a separate trial. This alleged accomplice of the defendant was the principal witness for the people, and it is undisputed that the conviction of the defendant would not have been possible in the absence of his testimony. The case was tried with great fairness, and there are no exceptions that are seriously presented to us as calling for a reversal of the judgment.

The important question is whether the testimony of the accomplice was so corroborated as to sustain the verdict of conviction. The Code of Criminal Procedure provides as follows: ‘Section 399. A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.’ It therefore becomes important to examine the corroborating evidence upon which the people rely to sustain the conviction of defendant, and determine whether it is sufficient, under the section quoted, as construed by this court.

On Saturday night, March 7, 1896, Stephen Powell, a life-long resident and respected business man of the village of Hempstead, Queens county, Long Island, was murdered between 11 and half past 11 o'clock, while going from his store, on Main street, to his house, on Fulton street, a distance of only five or six blocks. It was proved to have been a habit of deceased to carry about with him on his person considerable sums of money, and that this fact was more or less a matter of common knowledge in the community. It appears by the undisputed evidence that the deceased was the victim of a highway robbery, and that his death was caused by wounds inflicted when he was within a short distance of his residence. Mr. Powell left his place of business about 11 o'clock, stopped at a grocery store at the corner of Main and Fulton streets, made some purchases, and departed for home a little after 11 o'clock, in company with two friends, who accompanied him to within a block and a half of his residence, when they left him. This was about a quarter past 11 o'clock. At about 11:18 o'clock a witness named Hines passed the deceased, who at that time was within 100 yards of his home. Five minutes or less later, one Lowe, who lived a little further up Fulton street that the deceased, was on his way home, and found Powell lying on his back on the sidewalk, insensible, his legs partially drawn up, his arms outspread, his overcoat, coat, and vest open, the buttons of the latter torn off, and the right-hand trousers pocket turned inside out. Help was immediately summoned. The victim was carried into his own house, and expired, without regaining consciousness, in less than an hour after the assault. The robbers, in their haste, did not secure all the money that the deceased had with him, as $50 was found in one pocket, and $60 in another. The defendant and his alleged accomplice are young colored men, of rather unsavory reputations, having been several times convicted of misdemeanors, and shown to have been frequenters of places of low resort, and consorters with those of both sexes whose characters were questionable.

Waynes, the accomplice, was an unwilling witness; and it is evident, on reading his testimony, that he did not give a full and accurate account of the transactions and conversation between himself and the defendant during the last 40 or 50 minutes preceding the murder, which must have taken place between 11:15 and 11:20 o'clock. It is admitted by both the defendant and Waynes that they were together in saloons and on the street until half past 10 o'clock on the night of the murder. So it is unnecessary to refer to the large amount of evidence relating to the movements of these two men prior to that time. As to the all-important hour between half past 10 and half past 11 o'clock on the night in question, the stories of the defendant and Waynes are in sharp and direct conflict. Waynes says that at about half past 10 o'clock the defendant stated, when they were standing together on the street, that ‘he would like to have some money tonight’; but the district attorney was unable to elicit from the witness any further conversation or evidence of a scheme looking to the waylaying and robbing of the deceased. Waynes states that he and the defendant passed along over a certain route that brought them near the corner of High and Fulton streets, being a point where the deceased would pass on his way home from the store, and that presently they saw him approaching, and, when he crossed High street, defendant told Waynes to come along, and they followed their victim. The defendant was in advance, and Waynes saw him take something out of his pocket that looked like a black stocking hanging limp, with a bunch on one end of it, wrap it around his hand, and, when within two or three steps of the deceased, he swung it in the air, and struck him on the head, felling him to the ground. It may be remarked here that the attending physician testified that the skull of the deceased was fractured by a blow from a stone or some blunt instrument. Waynes further stated that deceased was lying on his face, and that defendant turned him over on his back, and rifled his pockets, while he (Waynes) kept watch, and then both ran away. It is impossible, in the absence of a map of the locality, to trace intelligently by streets the route of flight from the secene of the homicide to Clemens' saloon, which seems to have been the objective point of these two men. It will suffice to refer in a general way to certain incidents occurring prior to and during this flight, which are claimed on behalf of the people to corroborate the testimony of the accomplice in a most satisfactory manner. The statement of Waynes that he and the defendant were in the immediate locality of the homicide a few moments before it took place is corroborated to some extent by the testimony of Mirando, a barber, and Mary Hickey, who, from different standpoints and just prior to the murder, saw two colored men in the vicinity, one seven or eight inches taller than the other. The defendant is much taller than Waynes. According to Waynes' story, he and the defendant, in the early part of their flight, passed the corner of Jackson street and Terrace avenue; and one Treadwell swears that at 11:20 o'clock, when going up the front steps of his house at that point, he...