People v. Nicoll

• Decision Date: 19 December 1956
• Citation: 158 N.Y.S.2d 279,3 A.D.2d 64
• Parties: The PEOPLE of the State of New York, Plaintiff-Respondent, v. John A. NICOLL and Irvan A. Fredericks, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 279

158 N.Y.S.2d 279

3 A.D.2d 64

The PEOPLE of the State of New York, Plaintiff-Respondent, v. John A. NICOLL and Irvan A. Fredericks, Defendants-Appellants.

Supreme Court, Appellate Division, Fourth Department.

Dec. 19, 1956.

George G. Fiesinger, Little Falls, for defendant-appellant, Irvan A. Fredericks.

Harold E. Blodgett, Schenectady, for defendant-appellant, John A. Nicoll.

Albert W. Schneider, Dist. Atty., of Herkimer County, Herkimer, for the People.

McCURN, P. J., and VAUGHAN, KIMBALL, WILLIAMS, and BASTOW, JJ.

VAUGHAN, Justice.

These are appeals by both defendants from judgments of conviction of manslaughter in the first degree and assault in the third degree. The case was tried at great--it seems to us excessive--length before the County Court of Herkimer County. The defendants were found guilty on all counts of the indictment (except the second, which was dismissed on the trial), and they appeal to this Court, assigning numerous errors and causes for reversal.

We deem it unnecessary to discuss the evidence in detail. There was evidence tending to establish that the defendants, who were young men of previously unblemished reputation, had gone on a hunting trip and had been drinking rather heavily. In the course of their journey they observed two cars stopped along the road. Various persons, including the decedent, one Charles Friel, were engaged in an argument, the precise nature and background of which it is not important to relate. The defendants stopped their automobile and joined in the dispute. They maintained upon the trial that one of the disputants represented himself to be a deputy sheriff, indicated that he was having some trouble with Friel regarding the latter's driver's license, and departed in search of a state trooper. It was then and there--in the early morning of November 15, 1953, on highway number 8 in the county of Herkimer--that the defendants are charged by the fifth count of the indictment with assault in the third degree, Penal Law, § 244, in that they did 'push, shove, hold and threaten the said Charles Friel with a blackjack without cause or provocation.' At the conclusion of this alleged assault, the decedent either escaped from the restraint of the defendants or was freed by them, entered his car and drove away.

Shortly thereafter the defendants again encountered the Ford automobile operated by Mr. Friel. At the sight of them he fled. They gave chase, the defendant Fredericks driving. In his statement, offered in evidence by the People, the defendant Nicoll related: 'We chased the Ford automobile down the road. He was weaving and cutting in and out. For some reason that stuck in my mind I felt that we must stop that car. I reached over and got my rifle from the back seat or the floor of the back seat and put three cartridges in it. I rolled down the right side window and leaned out the window and took aim with the rifle and fired the three shots at the Ford car that we were following. The car weaved and hit the soft shoulder on the left side of the road and tipped over.' In his statement the defendant Fredericks related that he 'started to chase this car. I don't remember what we were chasing this car for or what we intended to do if we caught it but drove after this car in an effort to stop it. I caught up to the car at one time and tried to pass it so as to stop the car but the driver pulled over to the left side of the road so I couldn't get by. I saw John with one of the rifles out of the side window and then heard the rifle being fired several times and think John may have fired it about four times at the car we were chasing. He had the gun pointed in the direction of the car we were chasing.' Fredericks further stated: 'When John was shooting at this car, I was driving and I did not stop the car or try to stop the car after the first shot. I believe there was a few seconds interval between the shots he fired at this car and I would have had time to slow down and stop if I had cared to before he fired all of the shots. I did not say anything to John when he fired the shots at the car or did I tell him to stop shooting.' We are satisfied that the defendant Fredericks could properly be regarded as a principal.

The grand jury for Herkimer County returned an indictment containing four counts charging manslaughter, first degree. The second count was dismissed on the trial. The fifth count charged assault, third degree, and is discussed above. The first count alleged that, without a design to effect death, defendants killed Friel while engaged in committing a misdemeanor affecting the person of Friel and the property of one Remonda, who owned the automobile operated by the decedent, Penal Law, § 1050, subd. 1. The misdemeanor alleged was the willful and unlawful discharge of a firearm in a public place, Penal Law, § 1906. The third count similarly charged 'misdemeanor--manslaughter', the misdemeanor alleged being the willful damaging of a motor vehicle, Penal Law, § 1425, subd. 11-a. And the fourth count alleged that defendants, in the heat of passion and without a design to effect death, killed Charles Friel by means of a dangerous weapon, Penal Law, § 1050, subd. 2. There was no indictment for manslaughter in the second degree arising out of culpable negligence, Penal Law, § 1052, subd. 3.

While it is impossible, without extending this opinion to undue lengths, to discuss all of the numerous errors assigned upon this appeal, we desire to consider whether the venue was correctly laid in Herkimer County, so far as the manslaughter counts are concerned, and whether those counts should have been dismissed. It will also be necessary to refer to certain events which occurred upon the trial, certain remarks made by the district attorney in his summation to the jury, and various features of the Court's charge which we are unwilling to approve. While the above is by no means exhaustive of the errors assigned by appellants--and as to points not discussed we of course express no opinion--, we are confident that upon a new trial reversible error will be avoided by the high regard for the rights of the accused which the law expects every district attorney to possess and to observe.

The first question which must be determined is that of venue. The learned trial judge evidently misspoke when, in his charge to the jury, he referred to venue as a 'defense that has been interposed here by these defendants'. As he correctly charged, the People had the burden to introduce evidence from which venue could be fairly and reasonably inferred. People v. Hetenyi, 277 App.Div. 310, 98 N.Y.S.2d 990, affirmed 301 N.Y. 757, 95 N.E.2d 819. It was not an easy matter to prove. The chase commenced in Herkimer County and extended into Hamilton County. The weight of evidence is probably to the effect that the shots were fired in Hamilton County, but whether within 500 yards of the boundary is unclear, Code Crim.Proc. § 135. The automobile operated by decedent came to a halt eight tenths of a mile from the county line. He was removed to a hospital in Herkimer County, where five days later he died. In support of jurisdiction the People relied upon § 134 of the Code of Criminal Procedure: 'When a crime is committed, partly in one county and partly in another, or the acts or effects thereof, constituting, or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.' The language of § 134, when read both literally and reasonably, seems to sustain the jurisdiction of the county where death occurred. There was an act in Hamilton County, producing an effect in Herkimer County, and the two collectively constituted the crime of manslaughter. An indispensable element of the crime transpired in Herkimer County, and as was stated in a quite similar case, Hauk v. State, 148 Ind. 238, 247, 46 N.E. 127, 130, 47 N.E. 465, 'jurisdiction over a crime exists where any one or more of its substantive and material parts are committed.' Regarding only the language of § 134, we would be inclined to hold that where an assault in one county produces death in another, 'the jurisdiction is in either county.' And that is true even though at the time of the assault the victim and the assailant are in the same county. If cases arise--and this is not one of them--in which the application of the rule would work an injustice or burden the accused in the preparation of his case, we have no doubt that a motion to change the venue to the county of concurrent jurisdiction would be entertained.

Study of the legislative history of § 134 confirms our belief that it means what it says. At early English common law, where an assault in one county produced death in another, it was doubted whether either county had jurisdiction, see Stout v. State, 76 Md. 317, 25 A. 299 and authorities cited; 1 Wharton on Criminal Law, 12th ed., § 339. To resolve these doubts a statute was enacted in 1548, 2 & 3 Edw. VI, c. 24, which, after reciting that 'it often happeneth * * * that a Man is feloniously stricken in one County, and after dieth in another County, in which Case it hath not been founden by the Laws or Customs of this Realm, that any sufficient Indictment thereof can be taken in any of the said two Counties,' since the jurors in neither county had knowledge of the entire crime, enacted 'That where any Person or Persons hereafter shall be feloniously stricken or poisoned in one County, and die of the same Stroke or Poisoning in another County, that then an Indictment thereof founden by Jurors of the County where the Death shall happen * * * shall be as good and effectual in the Law, as if the Stroke or Poisoning had been committed and done in the same County where the Party shall die, or where such Indictment shall be so founden; any Law or Usage to the contrary notwithstanding.'

The first treatment of the subject in New York occurred at the 24th session of the...