People v. Smith
| Decision Date | 13 December 1921 |
| Citation | 133 N.E. 574,232 N.Y. 239 |
| Parties | PEOPLE v. SMITH. |
| Court | New York Court of Appeals Court of Appeals |
Herbert W. Smith was convicted of murder in the first degree, and he appeals.
Reversed, and new trial granted.
See, also, 187 N. Y. Supp. 836.
Appeal from Supreme Court, Trial Term, Chenango County.
David F. Lee, of Norwich, for appellant.
Ward N. Truesdell, of Sherburne, for the People.
On ample evidence we must assume that the jury found that the defendant broke into the store of one Johnson under circumstances which constituted the crime of burglary in the third degree; that by means of a burglar alarm the proprietor was advised of what was occurring, and that he and his son, armed with firearms, quickly proceeded to the store, where they found the defendant still engaged in the commission of his crime; that the latter, under threats of death, surrendered, and the proprietor and his son took him into actual custody, searching him and taking from his possession various articles, including a pistol, and thereafter placed him in a chair; that they still further consummated their capture and custody of him by placing handcuffs upon him and again commanding him to be seated in a chair, which he did; that then the proprietor stepped to a telephone and the son stepped behind the counter, leaning his gun against the latter, and the defendant sprang for and seized the gun, which was discharged, causing the death of the son, and the defendant then, with an accompaniment of force, escaped from the store.
Under these circumstances, in respect of which there was no substantial dispute, the court, both by what it charged and by what it refused to charge in response to defendant's requests, in effect, instructed the jury as matter of law that the defendant was engaged in the commission of the crime of burglary until he left the store, and that therefore he was engaged in the commission of such crime at the time the homicide occurred, and accordingly might be convicted of murder in the first degree. Presence upon the premises was thus made conclusive evidence of continuance in commission of the underlying crime. This was the only theory upon which the case was left to the jury, and their verdict clearly shows that they followed these instructions of the court. The question is whether these instructions were correct.
In cases of homicide committed in connection with crimes such as burglary, larceny, or robbery, presence at the time of the homicide upon the premises which were the scene of the original crime, or prior departure therefrom has been regarded as an important circumstance in determining whether the original crime was still in process of commission.
In various cases prior departure by the criminal from the premises for the purpose of escape has been regarded as decisively indicating that commission of the underlying crime had been terminated. People v. Huter, 184 N. Y. 237, 77 N. E. 6;People v. Marwig, 227 N. Y. 382, 125 N. E. 535. On the other hand, while presence upon the premises at the time the homicide was committed has been regarded as very important as indicating that the criminal was still engaged in the commission of the original crime, such presence became important because it was a circumstance tending to show, in connection with other facts, that the homicide was actually committed in the course of and for the purpose of carrying out the original crime. Thus in one case the criminal killed one who resisted his attempts to secure the desired booty; in another case the criminal shot and killed because his burglarious presence in a house at night had been discovered; in another one he killed the person who threatened to interfere with his escape, either with or without booty. People v. Schleiman, 197 N. Y. 383, 90 N. E. 950,27 L. R. A. (N. S.) 1075,18 Ann. Cas. 588;People v. Walters, 228 N. Y. 574, 127 N. E. 919;People v. Nichols, 230 N. Y. 221, 129 N. E. 883.
In each of these cases the homicide was in some degree connected with and incidental to the original crime. Presence upon the...
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