People v. Osmond

• Citation: 33 N.E. 739,138 N.Y. 80
• Parties: PEOPLE v. OSMOND.
• Decision Date: 11 April 1893
• Court: New York Court of Appeals

138 N.Y. 80

33 N.E. 739

PEOPLE

v.OSMOND.

Court of Appeals of New York.

April 11, 1893.

Appeal from court of oyer and terminer, New York county.

John L. Osmond was convicted of murder in the first degree, and appeals. Affirmed.

Charles W. Brooke and Stephen C. Baldwin, for appellant.

De Lancey Nicoll, Dist. Atty., (Henry B. B. Stapler, Asst. Dist. Atty., of counsel,) for the People.

PECKHAM, J.

Examining this record with reference to the statute of 1887, (chapter 493,) for the purpose of determining whether the verdict was against the weight of evidence, or against law, or whether justice requires a new trial, we are entirely clear that no new trial should be awarded on any ground mentioned in this statute. The evidence showed a cool and deliberate murder of the wife of the defendant, and at the same moment the shooting and killing of another person, who was then with her. The defense set up was the insanity of the defendant at the very moment of the killing, or, if not insane, that his mind was then in such a weak condition as to have been overcome, and that he was incapable of forming an intent to commit murder, and therefore his crime, if anything, was a lesser offense. A careful examination of the whole evidence leaves no room for doubt that there was an utter absence of testimony which even tended to show the alleged insanity or weakness of mind of the defendant. The evidence of the defendant himself leaves no room for doubt that there was no insanity about him. It is true that he swears that, just prior to the firing of the pistol, his mind suddenly left him. He remembers with distinctness all that took place at the interview in which the killing occurred, up to the moment when he saw Burchell ‘nudge his wife's knee;’ and from that time he says that during several hours, and at intervals, his mind was a blank, except that he heard a shot before Burchell struck him, and that the pistol went off to wards the corner where Burchell was shot. There is no pretense of any shooting other than his own. His whole evidence shows, if it be true, a full and long-acquired knowledge of his wife's improper relations with Burchell, and, with such knowledge, a failure for months to make even an attempt to punish Burchell or his wife. His own account showed a continued association with his wife and with Burchell after this discovery, although, as he says, he was constantly complaining of it. He continued to live in the same rooms with his wife, the rooms themselves being part of the house occupied and owned by Burchell. The defendant, his wife, and Burchell went on excursions, and Burchell paid the expenses, with defendant's acquiescence; and all this was long subsequent to the time when, as the defendant says, he surprised his wife and Burchell in bed together. It thus appears there was no such case as a husband suddenly confronted with proofs of his wife's infidelity, but a full and clear knowledge of it for months before the killing, and an intimate and daily association with both the guilty parties. The evidence of his brother and father and stepmother only shows, if believed, that the defendant was somewhat nervous, irritable, and excited over the behavior of his wife. Upon the merits there can be no rational doubt that the jury came to a correct conclusion.

We think it unprofitable to notice in detail all the objections which were argued here, and upon which a new trial is asked. We have carefully reviewed them all, and do not think they call for specific mention, further than we shan now give.

The defendant excepted to that portion of the charge where the court instructed the jury that if the defendant ‘intended to kill Burchell, and killed his wife, he is just as much guilty of murder as if he intended to kill her, because it is the killing of a human being, with a deliberate and premeditated design to effect the death of the person killed, or of another person; so that if he intended and fired at Burchell, and killed her, intending to kill Burchell, with this premeditation and deliberation, then he is guilty, under the statute, and it is your duty to say so.’ The counsel for the defendant excepted, and asked the court to charge the contrary, as the indictment charged the defendant specifically, and only, with the in tent to murder his wife. The indictment in this case is in the common-law form, and does not charge the killing to have been done, in the statutory language, ‘from a deliberate and premeditated design to effect the death’ of Mary Osmond. It charges that the defendant killed her ‘willfully, feloniously, and of his malice aforethought,’ and it contains no charge that, while intending to kill another, the defendant killed his wife. Ever since the adoption of the Revised Statutes, it has been held, without interruption, that an indictment for murder in the common-law form was proper, and that under it the people might prove any case which amounted to murder under the statute, and, if the proof did not bring the case within some one of the statutory definitions of murder, it was the duty of the court to give proper instructions to that effect to the jury, and, unless it appeared that the court had failed so to do upon request, the appellate court would presume that the proper instructions were given. Fitzgerrold v. People, 37 N. Y. 413, ...