People v. Nichols

• Citation: 230 N.Y. 221,129 N.E. 883
• Parties: PEOPLE v. NICHOLS.
• Decision Date: 11 January 1921
• Court: New York Court of Appeals

230 N.Y. 221

129 N.E. 883

PEOPLE

v.NICHOLS.

Court of Appeals of New York.

Jan. 11, 1921.

Guy Nichols was by verdict convicted of murder in the first degree, and he appeals.

Affirmed.

Appeal from Supreme Court, Trial Term, Kings County.

William Paul Allen and Raymond Malone, both of New York City, for appellant.

Harry E. Lewis, Dist. Atty., of Brooklyn (Ralph E. Hemstreet and Harry G. Anderson, both of Brooklyn, of counsel), for the People.

HISCOCK, C. J.

The defendant has been convicted of murder in the first degree. The indictment charged that he and two others, ‘in the county of Kings, willfully, feloniously, and of malice aforethought, shot and killed Samuel Wolchock with a revolver.’ The theory of the murder was that while defendant and his codefendants were engaged in robbing Wolchock one of the latter shot and killed him. The substantial facts establishing the crime were not only undisputed, but evidence of them was largely furnished by the defendant himself, who was tried separately and took the stand in his own behalf.

The defendant, who theretofore seems to have been a young man of law-abiding character, at the time of the homicide had become a deserter in Brooklyn from the United States navy through overstaying a shore leave, and he was without any money. Under these circumstances he unfortunately got to drinking and came into relations with the other indicted persons, Walker and Auth, and they entered upon a program of robbery. After other unsuccessful attempts they formed a plan to rob deceased, who kept a small store in the city of Brooklyn. In accordance with their plan Auth remained outside while Walker and defendant entered the store, the latter remaining near the door and the former proceeding to the counter and making a small purchase. As Wolchock turned to his cash drawer to make change on this purchase defendant pulled down the curtain on the front entrance and Walker attempted to secure the money from the drawer. The deceased, however, in the attempt to protect his property, grabbed Walker and in the course of the struggle which ensued was shot and killed. Defendant testified that when the deceased turned to the cash register for the purpose of making change Walker pulled his revolver and told him to put up his hands, and that he (defendant) ‘pulled the blind down then that is on the door, and Walker walked behind the counter. I had also pulled my gun out, too, and he started to get the money out of the cash register, and this man who owned the store-he jumped and grabbed Walker and he started wrestling, struggling, so I fired a shot in order to scare this man and scare Walker to come on out, and I hollered for him to come on and get out. * * * I says, ‘Come on, Walker, get out of here;’' and defendant ran out, leaving Walker in the store. After running out, defendant joined Auth, who gave him an overcoat for purposes of disguise, and they then went back to the rooms from which they had started, where defendant changed his clothes and received a dollar, unaccounted for except as part of the proceeds of the robbery, and left and returned to the nevy.

It is argued that two substantial errors were committed by the court in the course of the trial.

The first of these is the one alleged to have occurred when the court refused to instruct the jury that the defendant might be convicted of burglary or robbery. The allegation of this error is based upon section 445 of the Code of Criminal Procedure, some reference also being made to section 444. Section 444 provides:

‘Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime,’ etc.

Section 445 provides:

‘In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.’

[1] The argument is that, since defendant has been convicted of murder in the first degree under section 1044 of the Penal Law (Consol. Laws, c. 40) because the deceased was killed without excuse of justification, ‘without a design to effect death, by a person engaged in the commission of or in an attempt to commit a felony, either upon or affecting the person killed or otherwise,’ the felony in the commission of which defendant was engaged was a necessary ingredient of the crime of murder for which he was indicted, and therefore under section 445 he might be convicted of such felony, which was burglary or robbery. We think there is no foundation for this argument and that it entirely misinterprets the part which evidence of engagement in the commission of another felony performs in establishing the crime of murder, for which the defendant was indicted and of which he has been convicted. The commission of the crime of burglary or robbery was not ‘necessarily included’ in the crime of murder with which defendant was charged. It was not included therein at all in the sense in which defendant argues. The crimes of murder and burglary are substantively and generically entirely separate and disconnected offenses. In fact, this court has said:

‘In order, therefore, to constitute murder in the first degree by the unintentional killing of another while engaged in the commission of a felony, we think that, while the violence may constitute a part of the homicide, yet the other elements constituting the felony in which he is engaged must be so distinct from that of the homicide as not to be an ingredient of the homicide, indictable therewith or convictable thereunder.’ People v. Hüter, 184 N. Y. 237, 244,77 N. E. 6, 8.

[2][3][4] The purpose of proving participation in the commission of another felony which leads up to and results in the homicide is entirely different than the one suggested by the defendant. There can be no murder without evidence of malice and of felonious intent and a depraved mind. The indictment was sufficient in form when it simply accused defendant of having killed the deceased ‘willfully, feloniously, and with malice aforethought.’ People v. Giblin, 115 N. Y. 196, 197,21 N. E. 1062, 1063 (4 L. R. A. 757);People v. Schermerhorn, 203 N. Y. 57, 72,96 N. E. 376. On the trial it was necessary to prove such malice and willful and felonious conduct, and this necessity was satisfied in accordance with the provision of the statute by showing that the homicide occurred while the defendant was engaged in the commission of another felony. People v. Conroy, 97 N. Y. 62, 68, 69;People v. Giblin, 115 N. Y. 196, 21 N. E. 1062,4 L. R. A. 757. The theory upon which under the statute evidence of engagement in the commission of another felony supplies proof of the necessary malice and felonious intent upon which to found a conviction of murder in the first degree is well set forth in People v. Enoch, 13 Wend. 159, 174, 27 Am. Dec. 197, where it said:

‘Malice was implied in many cases at the common law, where it was evident that the offenders could not have had any intention of destroying human life, merely on the ground that the homicide was committed while the person who did the act was engaged in the commission of some other felony, or in an attempt to perpetrate some offense of that grade. Every felony, by the common law, involved a forfeiture of the lands of goods of the offender, upon a...