People v. Sullivan

Citation173 N.Y. 122,65 N.E. 989
Decision Date06 January 1903
CourtNew York Court of Appeals Court of Appeals

Appeal from trial term, Schoharie county.

James P. Sullivan was convicted of murder, and appeals. Affirmed.

O'Brien, J., dissenting.

Claude B. Mayham and Stephen L. Mayham, for appellant.

E. A. Dox, Dist. Atty. (George N. Palmer, of counsel), for respondent.


I have been constrained to reach a different conclusion from that held by Judge O'BRIEN. I agree with him that, as the guilt of the defendant was submitted to the jury on both claims of the people: First, that the deceased was killed with a deliberate and premeditated design to effect his death; and, second, that he was killed by the defendant while the latter was engaged in the perpetration of a felony, or an attempt to commit one,-If as to either claim the evidence was insufficient to justify the submission of the question to the jury, the conviction must be reversed, since it cannot be known on which ground the jury based its verdict. But I take issue with my associate on the proposition that there was any such inconsistency between the two claims as rendered it improper to submit both to the jury for determination. There was but a single crime charged in the indictment against the defendant,-that of murder in the first degree; and the only issue to be determined by the jury was whether the defendant had been guilty of that crime. Under our statute (section 183, Pen. Code), so far as applicable to the case before us, proof either that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or while the defendant was engaged in the commission of a felony, or an attempt to commit a felony, though without any design to take life, established his guilt of the crime charged. ‘It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other.’ Murray v. Insurance Co., 614, 48 Am. Rep. 658. So, in this case, it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one. It was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute. Ever since the enactment of the Penal Code, and even before that time, since the law of 1876, by which homicide in the commission of a felony was made murder in the first degree, it has been the practice, in prosecutions for that crime, to submit the case to the jury in both aspects,-premeditated and deliberate design to take life, and killing in the commission of a felony. Buel v. People, 78 N. Y. 492, 34 Am. Rep. 555;People v. Willett, 102 N. Y. 251, 6 N. E. 301;People v. Johnson, 110 N. Y. 134, 17 N. E. 684;People v. Meyer, 162 N. Y. 357, 56 N. E. 758. This is no new doctrine in the administration of the criminal law. On the contrary, the principle involved is very old; for far more than a century past it has been the practice, approved by all courts and text-writers, to charge, by the use of serveral counts, the same offense as committed in different manners or by different means. ‘There is no objection to stating the same offense in different ways in as many different counts of the indictment as you think necessary.’ Arch. Cr. Prac. 93. ‘Every cautious pleader will assert as many counts as will be necessary to provide for every possible contingency in the evidence, and this the law permits.’ Whart. Cr. Law, § 424. In this state the practice is directly authorized by statute. Code Cr. Proc. § 279. Where the several counts charge the same offense, the prosecution will not be compelled to elect on which count it will proceed. ‘It is everyday's practice to charge a felony in different ways in serveral counts for the purpose of meeting the evidence as it may come out upon the trial. Each of the counts on the face of the indictment purports to be for a distinct and separate offense, and the jury very frequently find a general verdict on all the counts, although only one offense is proved; but no one ever supposed that that formed a ground for arresting the judgment. If the different counts are inserted in good faith for the purpose of meeting a single charge the court will not even compel the prosecutor to elect.’ Opinion of chancellor, Kane v. People, 8 Wend. 203. In People v. Rugg, 98 N. Y. 537, the defendant was indicted for murder in the first degree, as charged in separate counts, some alleging premeditation and deliberation, others killing in the commission of a felony. The defendant on the trial moved that the prosecution be required to elect on which count of the indictment it would proceed. The motion was denied, and the jury rendered a general verdict of guilty. The judgment was affirmed by this court. It was held by the supreme court of the United States that a general verdict of guilty was good, though one count of an indictment charged the offense to have been committed in a haven or bay, and another its commission upon the high seas. U. S. v. Pirates, 5 Wheat. 201, 5 L. Ed. 64. The reasons for this practice are very clearly stated by Chief Justice Shaw in Bemis' Webster Case (471): ‘To a person unskilled and unpracticed in legal proceedings it may seem strange that several modes of death, inconsistent with each other, should be stated in the same document; but it is often necessary, and the reason for it, when explained, will be obvious. The indictment is but the charge or accusation made by the grand jury with as much certainty and precision as the evidence before them will warrnat. They may be well satisfied that the homicide was committed, and yet the evidence before them leave it somewhat doubtful as to the mode of death. * * * Take the instance of a murder at sea. The man is struck down, lies some time on the deck insensible, and in that condition it thrown overboard. The evidence proves the certainty of a homicide by the blow or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts,-charging a death by a blow and a death by drowning, and perhaps a third, alleging a death by the joint results of both causes combined.’ In the case suggested by the learned judge it would certainly be unreasonable that the defendant should escape conviction because of difference of opinion among the jurors as to whether his victim was killed by the blow or by drowning, when all were convinced that the killing was effected by the felonious act of the defendant. Nor is there the theoretical inconsistency between the two claims of the prosecution that has been assumed. It is not correct to say that, if the offense was committed in one way, it could not have been committed in the other. It is true that in the definition of the second manner in which the crime may be committed the statute reads, ‘Without a design to effect death.’ But this does not render absence of intent an essential ingredient of the offense, such as the killing or the commission of the felony, elements which the prosecution is bound to prove beyond a reasonable doubt. ‘Without a design to effect death’ is to be interpreted as meaning regardless of whether there was a design to effect death or not. This rule applies in a certain measure to the definitions of the various grades of homicide so far as those definitions prescribe the absence of an element which, if present, would constitute a higher degree of crime. By section 184 of the Penal Code murder in the second degree is defined to be the killing of a human being with the design to effect the death of the person killed or another, but ‘without deliberation and premeditation.’ By sections 189 and 193 the offense is manslaughter when committed ‘without a design to effect death.’ It is not necessary, however, that the prosecution should prove beyond a reasonable doubt in the first case that there was no deliberation, or in the second that there was no design to effect death. On the contrary, the rule is that, where there is reasonable doubt in which of several degrees of a crime the defendant is guilty, he must be convicted of the lowest degree. Code Cr. Proc. § 390. So an acquittal on the merits on an indictment for manslaughter or for murder in the second degree will bar a subsequent prosecution for murder in the first degree (Whart. Hom. § 898; Pen. Code, § 36), which would not be the law if a conviction under either of such indictments could not be sustained by proof establishing the higher offense.

The direct evidence, including that of the witness Harris, who, as has been said by my associate, was sufficiently corroborated, proved circumstances which clearly established that the deceased was shot by the defendant and his associates, without relying on their subsequent statements to that effect. At about half past 1 in the morning of the homicide the deceased and the witness Warner were standing at the corner of Main and Grand streets, in the village of Cobleskill, when, as that witness testifies, they saw a party of four or six men, whom he could not identify, pass up Grand street. He then left the deceased, went to his room, and was preparing for bed, when he heard the sound of shooting,-several shots. He went to the window, and heard the barking of a dog. The noise appeared to come from the store of one Borst on Main street, a short distance from the place where he had been standing with the deceased. He immediately went to this store, and found the body of the deceased there, and several...

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