People v. Sobieskoda

• Decision Date: 17 April 1923
• Citation: 139 N.E. 558,235 N.Y. 411
• Parties: PEOPLE v. SOBIESKODA.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 411

139 N.E. 558

PEOPLE

v.SOBIESKODA.

Court of Appeals of New York.

April 17, 1923.

John Sobieskoda was convicted of murder in the first degree, and he appeals.

Reversed, and new trial ordered.

Cardozo and Crane, JJ., dissenting.

Appeal from Supreme Court, Trial Term, Genesee County.

William H. Coon and James F. Crowley, both of Batabia, and Mathew W. Bennett, of Lackawanna, for appellant.

James L. Kelly, Dist. Atty., and Albert J. Waterman, both of Batavia, for the People.

POUND, J.

The indictment in three counts charged defendant with the crime of murder in the first degree in taking the life of Stanley Luczak on March 9, 1922. The first count charged that defendant, with the deliberate and premeditated intent to cause the death of Vincent Luczak, killed Stanley Luczak. The second count, which was withdrawn by the district attorney on the trial, charged that defendant, without a design to effect the death of Stanley, killed him while attempting to commit the crime of murder in the first degree against Vincent Luczak. Penal Law (Consol. Laws, c. 40) § 1044, subd. 2. The third count charged in the commonlaw form the murder in the first degree of Stanley Luczak. This third count permitted a conviction upon proof of the facts alleged in the second count. People v. Friedman, 205 N. Y. 161, 164,98 N. E. 471,45 L. R. A. (N. S.) 55.

Up to the point of the actual killing the material facts are not in dispute. Vincent and Stanley Luczak were brothers. Stanley, with his wife and children, lived on a farm in the town of Bethany, Genesee county. Vincent and his wife, Edna, lived in the city of Buffalo. Defendantwas a molder by trade. He also lived in Buffalo, but he had been out of regular work for some months before the homicide, and his sister-in-law testified that he made moonshine whisky and drank and got drunk frequently during that period. From the statement of defendant, taken after his arrest, it appears that he knew the Vincent Luczaks well, and that he and Edna had had adulterous relations. Edna had reasons for desiring to rid herself of her husband beside her attachment to defendant. Real property was owned by them jointly, and his life was insured for her benefit. The relations between defendant and Edna caused trouble, and Vincent had threatened to shoot defendant.

Defendant says Edna and he formed a plot to have Vincent put out of the way, and she promised defendant to pay a man called Joe Gordon, whom defendant had retained for the purpose, $600 to kill Vincent. On this promised consideration Gordon undertook the job. Edna furnished $30 for the purchase of a revolver which Gordon bought in the presence of defendant from Max Cheiffitz about two weeks before the homicide.

But Vincent was not killed. His brother, Stanley, was killed in these circumstances: On the day of the homicide Vincent and Edna took the train from Buffalo to Linden, a station about 2 1/2 miles from the Bethany farm. Defendant and Gordon were at the Buffalo station to see them off. They then started for Bethany in an automobile. They planned a sham holdup wherein Vincent was to be killed on the way to Stanley's house, but they abandoned this purpose because it was too light. They waited until after dark, and planned to shoot Vincent in the house through the window. Gordon or defendant looked in the window in the front door. One of Stanley's little children saw the face and told the others, who looked around and found no one. Defendant and Gordon ran and hid themselves behind a stump along the roadside for 20 minutes, when Gordon came back to the house. This time Vincent saw the face in the window, a general alarm was sounded, and Stanley came out of the house with Vincent and others. Stanley had a shotgun. Defendant and Gordon were hidden behind the stump. Stanley came down the road with the shotgun looking for the intruders. Vincent was near the house, some distance from Stanley. Defendant says in his statement that Joe fired the first shot toward Stanley, but into the ground; that Stanley shot in the direction of the stump and struck defendant in the leg; that, when he fired, defendant ran away, and Joe kept on firing. It appears elsewhere that Gordon fired seven shots in all, four of which struck Stanley, causing instant death. Defendant says that he did not know whether the man with the shotgun was Vincent or Stanley; that Joe and he made their escape in their automobile, and he did not know that it was Stanley who had been killed until he read an account of the homicide in the newspaper.

The case was submitted to the jury under the Penal Law (section 1044, subd. 1), which provides:

‘The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed:

‘1. From a deliberate and premeditated design to effect the death of the person killed, or of another.’

[1] The court properly instructed the jury:

‘A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime is a ‘principal.” Penal Law, § 2.

[2] The court further instructed the jury in substance that, so long as defendant and Gordon had the design to kill Vincent, it mattered not how the death of another was effected; that, if defendant was at the scene of the killing with the design to kill Vincent, it made no difference who else Gordon killed or under what circumstances he killed him; that the wicked intent and design against Vincent infected and made joint all the acts of either. The court said:

‘If while they were still confederating and working together (having in their minds the killing of Vincent) they took the life of Stanley, it matters not who fired the fatal shot.’

In reply to a question from one of the jurors as to the proper rule to guide their action if the killing was ‘done on the impulse of the moment, without deliberation or premeditation,’ the court said:

‘It is not necessary that you find deliberation and premeditation to kill Stanley, but you must find deliberation and premeditation to kill somebody.’

On this theory it was the duty of the jury to convict defendant even if they found that Gordon, not having abandoned the design against Vincent, but following the suggestion of his own wicked heart, turned aside from the execution of such design and willfully killed Stanley. The court also charged the jury in substance that only if defendant and Gordon had abandoned their common purpose against Vincent could it be said that Gordon was acting independently and alone in shooting Stanley.

This was error. The question material to defendant's guilt on this branch of the case was whether Stanley was killed in the prosecution and furtherance of the unlawful purpose to effect the death of Vincent, not whether he was killed by Gordon while such unlawful purpose was in existence (People v. Giusto, 206 N. Y. 67, 73,99 N. E. 190), even though the killing of Stanley was accomplished neither while defendant and Gordon were acting together in the commission of the felony against Stanley nor in the furtherance of the felony they had planned against Vincent.

If A. and B. start out together with the design to kill C., and while that design exists B. kills D. as a separate and distinct act, not as a part of the offense designed against C., A. is not guilty of the crime of murder in the first degree or of any crime merely because he has murder in his heart directed at C. at the time of such killing. Lamb v. People, 96 Ill. 73;Williams v. State, 81 Ala. 1, 1 South. 179,60 Am. Rep. 133, 135;People v. Marwig, 227 N. Y. 382, 125 N. E. 535, 22 A. L. R. 845. But if A. and B. start out with an evil intention against C. to take his life, and in the execution of such purpose either A. or B. kills D., it shall be no excuse to either to say that the intention was to kill C., and not the person killed.

‘For the end of the act shall be construed by the beginning of it, and the last part shall taste of the first, and as the beginning of the act had malice prepense in it, and consequently imported murder, so the end of the act, viz. the killing of another, shall be in the same degree, and therefore it shall be murder.’ Reg. v. Saunders, Plow, 473, 474; People v. Miles, 143 N. Y. 383, 388,38 N. E. 456.

‘Where a number of persons are acting together in the commission of the felony, a homicide perpetrated in furtherance of the felony is deemed to be within the common purpose and all are alike responsible in law therefor.’ People v. Giusto, supra.

[3] The burden was on the people to establish that defendant was a principal in the killing of Stanley with malice aforethought. By a process of exclusion, we may eliminate from consideration several possible theories of defendant's guilt so far as they are developed by the record now before us: (a) If Gordon shot at Vincent, intending to wound or kill him, and by a false aim killed Stanley, without a design to take his life, defendant would be guilty of murder in the first degree. People v. Miles, supra. But the evidence does not suggest that Gordon's aim was directed at Vincent. On the contrary, he aimed, and aimed well, at a person not known to be Vincent. (b) If Gordon shot at Stanley, mistaking him for Vincent, the killing would be with...