People v. McGrath

• Citation: 96 N.E. 92,202 N.Y. 445
• Parties: PEOPLE v. McGRATH.
• Decision Date: 03 October 1911
• Court: New York Court of Appeals

202 N.Y. 445

96 N.E. 92

PEOPLE

v.McGRATH.

Court of Appeals of New York.

Oct. 3, 1911.

Appeal from Supreme Court, Trial Term, New York County.

Edward McGrath was convicted of murder in the first degree, and he appeals. Reversed and remanded, with directions.Robert J. Haire, for appellant.

Charles S. Whitman, Dist. Atty. (Stanley L. Richter and Robert C. Taylor, of counsel), for the People.

WILLARD BARTLETT, J.

The indictment, which is in the common-law form, charges the defendant with having feloniously and of his malice aforethought killed one Benjamin Rose at the city of New York on the 6th day of September, 1909, by stabbing him in the throat with a knife.

It was found in the Court of General Sessions and duly transferred to the Supreme Court, where the case was tried and the jury rendered a verdict of guilty of murder in the second degree on the 5th day of February, 1910. Upon this first trial the people were represented by Mr. Frank Moss, assistant district attorney, and Mr. Allen G. Wellman and Mr. Robert Turnbull, deputy assistants, and the defendant was represented by Mr. Robert H. Hibbard, Mr. Edward D. Dowling, and Mr. Denis O'L. Callahan. Upon the rendition of the verdict finding the defendant guilty of murder in the second degree the following proceedings took place, as appears from the official stenographer's minutes:

‘Mr. Hibbard: I will ask your honor to reserve all motions until the day of sentence.

‘The Court: I decline the request.

‘Mr. Hibbard: Then I move to set aside the verdict on the ground that it is against the evidence and against the weight of evidence and upon all the grounds mentioned in the Code of Criminal Procedure.

‘The Court: What do you say, Mr. District Attorney, on the motion to set aside that verdict?

‘Mr. Hibbard: I have not conferred with my client yet. Will your honor wait a moment?

‘The Court: What do you say, Mr. District Attorney, to that motion to set aside the verdict?

‘Mr. Moss: I don't oppose the motion.

‘The Court: Then I grant the motion.

‘Mr. Hibbard: I made that motion without consulting with my client and--

‘The Court: I grant the motion to set aside the verdict as against the evidence and the weight of evidence, and the district attorney consents. The district attorney will move the case at the earliest day next term.

‘Mr. Hibbard: If your honor please, I should like to withdraw that motion.

‘The Court: It is too late. The judgment of the court has been rendered.

‘Mr. Hibbard: I except to your honor's ruling.

‘The Court: I granted your motion. I do not know what you have to except to.

‘Mr. Hibbard: I made that motion without consulting with my associates.

‘The Court: It is too late now.’

The case came on for trial a second time, before the same justice of the Supreme Court, on the 15th day of February, 1910. His present counsel thereupon objected in behalf of the defendant ‘that the people ought not to have and maintain a further action in the above-entitled proceedings against him, and that the people should be barred from further prosecuting this defendant because of the former trial upon the same indictment and the jeopardy thereto attached by reason of said trial.’ In support of the plea of former jeopardy thus interposed, the defendant begged leave to refer to the stenographer's minutes which have been set forth relating to the proceedings which took place at the conclusion of the first trial. The presiding justice said this abstract was substantially correct, with the insertion of the words ‘new trial’ which did not alter the sense or substance, and then added: ‘Now, I overrule your motion.’ Counsel for defendant excepted, whereupon the court asked: ‘Your motion is what?’ And defendant's counsel responded: ‘My motion is that he be not tried, upon the ground that the court is without jurisdiction and on the ground of previous jeopardy.’ Following this statement in the record appear the words: ‘Overruled; exception.’ Objection on the same ground was made to proceeding with the trial, to the examination of each juror, and to the examination of each witness called for the people; and, when the objection was overruled, an exceptionwas duly recorded. The defendant was convicted of the crime of murder in the first degree; and from the judgment of death pronounced upon the verdict he has appealed, as is his statutory right, directly to this court.

[1] Upon such an appeal was are empowered to consider questions of fact as well as questions of law; but the counsel for the defendant has not asked us to do so. He relies solely upon the constitutional guaranty against being more than once put in jeopardy, and insists that any further proceedings on the second trial should have been held to be barred by the facts which were made to appear from the record of the first trial as contained in the stenographer's minutes which have been quoted.

[2] Another suggestion is made, however, which it is necessary to notice. This is that upon an indictment for murder in the first degree a conviction of murder in the second degree operates as an acquittal of murder in the first degree, and the accused cannot again be put upon trial for the higher grade of homicide, when the original judgment is reversed or the verdict otherwise set aside at his instance. Some countenance is to be found for this view in the language of Andrews, J., in People v. Cignarale, 110 N. Y. 23, 30,17 N. E. 135. The question, however, was not involved in the appeal in that case; and, furthermore, there is a distinct intimation at the close of the opinion that, even if it were the common-law doctrine that a conviction for the lesser grade of an offense imports an acquittal of the higher grade, the Legislature would nevertheless be competent to change the rule so far as future cases were concerned. That such is not now the rule in this state was declared by this court to be the effect of sections 464 and 544 of the Code of Criminal Procedure in People v. Palmer, 109 N. Y. 413, 17 N. E. 213,4 Am. St. Rep. 477, which was decided on the same day as the Cignarale Case, although no reference is made in the opinion in either case to the opinion in the other. In the Palmer Case it was distinctly decided that, under the sections cited, where a defendant has been convicted of a lower degree of the crime charged in the indictment and upon his own application a new trial is ordered, the case stands as if there had been no trial at all, and the defendant must be tried under the indictment as it is, and not simply for the grade of crime of which he was previously convicted. In Trono v. United States, 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Ed. 292, the Palmer Case is cited approvingly in a discussion of the question whether upon a new trial in a criminal case, where the defendant has been convicted of a lower grade of the crime charged in the indictment he can again be tried for the greater offense charged therein. The court says that the question has given rise to much diversity of opinion in the various state courts, but declares the better doctrine to be ‘that which does not limit the court or jury, upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been. The accused by his own action has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place.’ Opinion of Peckham, J., page 533 of 199 U. S.,page 124 of 26 Sup. Ct.,50 L. Ed. 292.

If, therefore, the new trial in the case at bar had been granted at the undoubted instance and in the real interest of the defendant, we should have no difficulty in holding that the previous verdict did not stand in the way of a conviction of murder in the first degree.

[3] This brings us to a consideration of the manner in which the new trial was ordered. The jury had retired at 6:15 p. m. on Friday and returned into court at 11:47 a. m. on Saturday, when they rendered their verdict finding the defendant guilty of murder in the second degree. His counsel then asked the court to reserve all...