People v. Murch

• Decision Date: 09 January 1934
• Citation: 263 N.Y. 285,189 N.E. 220
• Parties: PEOPLE v. MURCH.
• Court: New York Court of Appeals Court of Appeals

263 N.Y. 285

189 N.E. 220

PEOPLE

v.MURCH.

Court of Appeals of New York.

Jan. 9, 1934.

Harry Murch was convicted of murder in the second degree, and was sentenced to imprisonment at Sing Sing for not less than 20 years nor more than life. From a judgment and order of the Appellate Division (240 App. Div. 786, 266 N. Y. S. 907), affirming the judgment of conviction in the County Court, the defendant appeals, by permission of the Court of Appeals.

Judgment affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Dana Wallace, A. M. Brownstein, and H. Irwin Brownstein, all of Jamaica, L. I., and Joseph Lonardo, of Long Island City, for appellant.

Charles S. Colden, Dist. Atty., of Flushing, L. I. (Mordecai Konowitz, Asst. Dist. Atty., of New York City, of counsel), for the People.

CROUCH, Judge.

The defendant was indicted for the crime of murder in the first degree. His age, when the crime was committed, was fifteen years, ten months, and six days. He was tried upon the theory that the killing was premeditated, deliberate, and wife felonious intent. He was convicted of the crime of murder in the second degree. The judgment of conviction was affirmed by the Appellate Division. The case is here upon a certificate by a judge of this court.

The material facts are undisputed. The defendant, his victim, Willie Bender, twelve years old, one Johnny Miller, ten years old, and his sister, Grace Miller, thirteen years old, were neighbors in Richmond Hill Circle, a partially developed section of Queens county. On January 31, 1933, after school was out, the defendant met Johnny Miller and told him ‘he was goint to get the Bender boy for letting all around that he had hit the lady over the head’; and that if Johnny did not go along with him, he would do the same thing to Johnny. Together they went to the garage at the defendant's home, where defendant tore a piece of cloth from a rag, picked up some rope, and put them in his pocket. They then set out to find the Bender boy and on the way defendant secured a knife-‘like a potato knife’-which he had previously found at a dump and had hidden ‘down by the bridge.’ Having found the Bender boy, defendant said to him, ‘I'll show you how we are going to tie up the peanut man and stab him.’ At defendant's suggestion, they all went to an unfinished house in the neighborhood, climbed in, and then up to a rear room on the second floor. Defendant said to Johnny Miller, ‘First we will try it on you’; and he tied Johnny's legs and hands with rope and then released him. Thereupon he said to the Bender boy, ‘We will try it on you next.’ The defendant tied the Bender boy's hands and feet with the rope and covered his eyes and mouth with the strip of cloth. Then defendant said, ‘I'll put my finger where we are going to stab the peanut man.’ He pulled up the Bender boy's clothes, took out the knife, and stabbed him through the heart, causing his death. The two boys then ran out and went to the Miller house, dropping the knife on the way near a creek. The defendant told Grace Miller, who was then in the house, that he had stabbed Willie Bender with a knife. She went out, found the knife, it in the creek whence it was later recovered, and told the defendant to go home. No trace of the missing boy was discovered until February 15th, when the body was found by a carpenter who had entered the unfinished house for purposes of inspection.

In his charge to the jury the trial judge, having given apposite instructions concerning murder in the first degree by premeditation and murder in the second degree, then charged as follows: ‘An infant under sixteen years of age can be indicted and tried for murder in the first degree or murder in the second degree and nothing else. Any other offense, committed by a defendant under sixteen years of age is juvenile delinquency which is not a crime.’ In conclusion the jury was told that its verdict might be one of three: Guilty of murder in the first degree, or in the second degree, or not guilty. To the instructions so given an exception was taken. To refusals upon requests to charge the lower degrees of homicide and to permit the jury to find thereunder, exceptions were also taken. These exceptions raise the only substantial question of law in the case.

The contention of the appellant is that under the provisions of section 610 of the Penal Law (Consol. Laws, c. 40) and of section 444 of the Code of Criminal Procedure, the trial judge was required to charge the lesser degrees of homicide. Those sections provide, in substance, that upon an indictment for a crime consisting of different degrees, the jury may convict of the degree charged or may acquit thereof and convict of a lesser degree, or of an attempt to commit the one or the other. But the power to convict of a lesser degree or of an attempt exists ‘only where the evidence would justify such conviction.’ People v. Seiler, 246 N. Y. 262, 266, 158 N. E. 615, 616.

We will assume-though the evidence makes the assumption somewhat difficult-that if the defendant had been over the age of sixteen years or an adult, it would have been error not to charge the degrees of manslaughter. But since the defendant was under the age of sixteen, the duty of the judge to instruct the jury and the power of the jury to act under the two sections in question were both limited by other statutes. Section 2186 of the Penal Law provides that: ‘A child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if...