People v. Roper

• Citation: 259 N.Y. 170,181 N.E. 88
• Parties: PEOPLE v. ROPER.
• Decision Date: 03 May 1932
• Court: New York Court of Appeals Court of Appeals

259 N.Y. 170

181 N.E. 88

PEOPLE

v.ROPER.

Court of Appeals of New York.

May 3, 1932.

Louis Roper was convicted of murder in the first degree, and he appeals.

Reversed, and new trial ordered.Appeal from Court of General Sessions, New York County.

Frank Aranow, Alfred I. Dittler, Harris Berlack, and H. Edward Raiden, all of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

LEHMAN, J.

A little before 2 o'clock in the morning of January 20, 1931, two youths or men, with handkerchiefs covering their faces and armed with pistols, entered a negro restaurant on Seventh avenue in New York City. At the point of the pistol, one of them compelled the people in the restaurant to go to the rear and took some money from their persons. The same youth shot and killed William Groce, a customer of the restaurant. The other bandit took money from the cash register. Then both escaped.

The robbery and shooting were promptly reported to the police. Those who had been present in the restaurant were examined at the precinct station house in the presence of a stenographer. Thorp, the manager, gave a description of the general appearance and build of the masked bandits. They were, so he said, both negroes of dark complexion. One was tall and one was short. ‘He had a soft face, well dressed, this tall fellow. Short fellow had a rough face.’ Promptly the police sent out a general police alarm for the apprehension of these men. The description of the men wanted was of necessity meager. One of them has never been apprehended. A few nights after the robbery the defendant Roper was arrested on the street, after being shot by police officers. On the chance that Roper might be one of the robbers, Thorp was summoned to look at the defendant while the defendant was in the operating room of the hospital awaiting surgical treatment for his wounds. Before the magistrate and at the trial Thorp positively identified the defendant as the tall robber with a ‘soft face’ who had shot William Groce.

The indictment of the defendant and one ‘John Doe’ for murder in the first degree charges in common-law form that the ‘said defendants in the county of New York * * * with force and arms, in and upon one William Groce * * * willfully, feloniously and of their malice aforethought did make an assault, * * * giving unto him * * * one mortal wound of which * * * the said William Groce * * * did die.’ Thorp was the only eyewitness of the crime who was produced by the prosecution. The people frankly admit that none of the others, if produced, could identify the defendant as one of the men whose faces were concealed by handkerchiefs while they robbed the restaurant. Thorp explained that at one time the handkerchief which covered the defendant's face slipped down and that thus he had opportunity to see the defendant's features while the handkerchief was being hurriedly readjusted.

The trial was conducted with eminent fairness, and we find no reversible error in the admission or exclusion of evidence or in the charge, if the case was tried and submitted to the jury on the proper theory. Perhaps there may be doubt as to Thorp's identification of the defendant. On that question the defendant has had a fair trial, and none of his substantial rights have been infringed by excess of zeal or fault of police, prosecuting attorney or trial judge. A majority of the court, at least, find that the verdict of the jury is not against the weight of evidence upon the issues presented to the jury. We confine discussion in this opinion to the question whether the jury's finding of guilt on these issues supports the defendant's conviction of the crime of murder in the first degree.

Thorp's testimony establishes that a negro, whom he identified as the defendant on trial, shot and killed William Groce while he and another negro were engaged in taking money at the point of a pistol from the cash register of the restaurant and from the persons of those who were present in the restaurant. The defendant's age at the time of the homicide was not determined in the manner provided by section 817 of the Penal Law (Consol. Laws, c. 40). Upon the preliminary examination of the jurors, the assistant district attorney stated to them: ‘The defendant Louis Roper at the time of the alleged commission of the crime by him was between fifteen and sixteen years of age.’ Testimony that the defendant was under the age of sixteen was uncontradicted. The case was tried and submitted to the jury upon the assumption that the fact that the defendant was at the time of the homicide under the age of sixteen carries no legal consequences in a trial for murder in the first degree. We are called upon to test the validity of that assumption in this case.

Only a child under the age of seven years is incapable as matter of law of committing a crime (Penal Law, § 816), though a child ‘of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand’ (section 817). Even so, not every act or omission which, if committed by an adult, would be a crime, is a crime when committed by a child, for the Legislature has expressly decreed that ‘a child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if committed by an adult, would be a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency.’ Penal Law, § 2186. Murder in the first degree is punishable by death. Therefore, it is clear that a child of fifteen may be guilty of the crime of murder in the first degree. When guilt of a crime has been established, its penal consequences are the same for child and adult criminal. But guilt cannot be established without proof of every essential element of the crime, and, since a felonious intent is an essential element of the crime of murder, guilt of a defendant can never be established without proof of such intent. Thus, the guilt of a defendant charged with murder in the first degree may depend upon his capacity to form the felonious intent. Then the fact that a defendant is under the age of sixteen may carry legal consequences.

‘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.’ * * * 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.' People v. Nichols, 230 N. Y. 221, 226, 129 N. E. 883, 884.

Here, as in that case, the conviction rests upon a finding of the jury that a human being was killed by a person ‘engaged in the commission of another felony.’ True, the evidence is sufficient to support a finding that the homicide was committed by the defendant ‘from a deliberate and premeditated design to effect the death of the person killed,’ and a homicide committed in that way also would constitute murder in the first degree (Penal Law, § 1044) and might be proven under an indictment in common-law form. The jury, if such question had been presented to it, might have found that the defendant formed such a deliberate design, though under the age of sixteen; but the jury here made no such finding, for no such question was presented to it. If the trial judge in his charge had left that question to the jury, he would have been bound to charge on the degrees of homicide, and the jury would have been free to find a verdict of guilt in lesser degree than murder in the first degree. He chose to do otherwise. He charged the jurors that they were concerned only with the question of whether a human being was killed during the commission of a felony in which the defendant was a guilty participant, and that their verdict must be either guilty of murder in the first degree or not...