People v. Udwin

• Decision Date: 08 July 1930
• Citation: 172 N.E. 489,254 N.Y. 255
• Parties: PEOPLE v. UDWIN et al.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 255

172 N.E. 489

PEOPLE

v.UDWIN et al.

Court of Appeals of New York.

July 8, 1930.

Claude Udwin and others were convicted of murder in the first degree, and they appeal.

Affirmed.

O'BRIEN, J., dissenting.

Appeal from Supreme Court, Trial Term, Cayuga County.

Harry A. Gleason, of Auburn, for appellant Udwin.

Benjamin C. Mead, of Auburn, for appellant Thomas.

Perry E. Leary, of Auburn, for appellant Force.

John H. Sawyer, Dist. Atty., of Auburn (Theodore M. Coburn, of Auburn, of counsel), for the People.

KELLOGG, J.

The conviction was obtained upon an indictment, charging that the defendants, then inmates of Auburn Prison, on December 11, 1929, in concert with other inmates, made an attempt to escape, in violation of section 1695 of the Penal Law (Consol. Laws, c. 40), and that, in the course of the attempted escape, they or their confederates killed one Henry Sullivan, whereby the defendants became guilty of the crime of murder in the first degree.

A group of seven inmates, not including these defendants, on the morning of December 11, 1929, instigated a riot at Auburn Prison. Among them was Henry Sullivan, for whose death these defendants have been found responsible. Some of the group, at one point, held up, captured, and disarmed Warden Jennings and Capt. Dempsey; others, at a different point, made Officers Ryther and McTaggart captive. The four officers, with hands tied behind their backs, were forced, at pistol point, to mount the stairs leading to the punishment gallery in the south cell block. As they climbed the stairs, the convicts behind, members of the rioting group, called out to the four guards in the gallery: ‘Stick them up. We got your Warden, or we will fire.’ The guards, observing that the warden and three fellow officers made a shield for the rioting convicts, threw their pistols away, surrendered, and were made captive. The eight officers were then locked in one of the gallery cells. There were fifty-seven convicts locked in an equal number of cells on this gallery. Among them were these defendants, Udwin, Thomas, and Force. The cells were unlocked, the doors opened, and the inmates told that those who wanted to go home might come out. Among the many who emerged were these defendants. Some of the convicts remained standing before their cell openings; others joined the rioting group in its subsequent proceedings.

The original group of rioters, accompanied by eight to twelve of the freed convicts, after releasing the eight officers from the cell, marched them down the gallery stairs, and up into a hall known as the chapel hall. Again using the officers as shields, they cried out as they came: ‘This is the Warden coming, you will shoot your Warden.’ They arrived at a grill work screen which, stretching from wall to wall, barred their progress. About twenty or thirty feet further on was the south wall of a room known as the guard room. A heavy door, with a small opening through it covered with grill work, closed off the hall from the room. Through this opening a few shots were fired into the hall by officers stationed beyond the door. The firing ceased, and conversations were exchanged between the captive guards behind the screen and the officers in the guard room. Finally, Officer McTaggart, crowding through a small opening in the screen, carried a note, written by the warden, to the door of the guard room, and delivered it through the grill to an officer. The note read: ‘Allow us to go with the prisoners without any fire. The officers are to be used as shields. If a shot is fired the prisoners will kill officers and have sworn to die. Open front gate so the fifteen men can go free. Please don't shoot.’ The note was signed ‘E. S. Jennings.’ No answer came for about an hour. Meanwhile, a door in the screen was opened by a convict and officers and prisoners swarmed through. Handcuffs were discovered in the principal keeper's room. The officers were untied and handcuffed in pairs, making four groups of two handcuffed officers. During all the long wait a convict stood behind each officer pressing a pistol to his spine or the back of his neck. Henry Sullivan stood behind the warden. Needless to say many angry words and numerous threats were uttered. The convicts thought the officers were ‘stalling.’ They proposed to ‘kill one of the ‘screws' and paste him up as an example. They shouted to the guard room officers: ‘Let us out or we will shoot all the guards.’ It was a tense time. ‘It seemed an eternity.’

Word finally came from the officers in the guard room that they would comply with the request made in the warden's note; that they would provide them with automobiles at the front gate. The door into the guard room was unbarred and a key to unlock it was thrown through the grill. The convicts opened the door, and the men marched through in double file, two handcuffed officers, then two convicts pressing them with pistols, then two officers, then two convicts, and so on until sixteen had passed, and then seven or more convicts. Warden Jennings and Officer McTaggart entered first. As the last convict passed through, the door into the chapel hall was closed behind them. Except for those who entered, the room was empty. No shots were exchanged. When the entrants had advanced to a point between one-quarter and one-half the length of the room, gas bombs were thrown through the closed grill of the door opening on the right, leading into the front hall, which was in the middle of the right wall. Gas bombs were also thrown down the stairs leading to the warden's kitchen, which was behind and to the right of the entrants. Within a few seconds the room was filled with a black vapor. The handcuffed men and convicts fell to the floor, some of them unconscious, some of them not wholly so. Shots, variously estimated at from six to twenty, were heard in the room.

When the smoke had partly lifted officers with gas masks entered from the front hall. They found the warden, handcuffed to McTaggart, on the floor, and pulled the two into the hall. Other handcuffed officers were found and similarly disposed of. Three of them had been shot in the head but were alive and have since recovered. All the convicts, except Sullivan, had fled through the door into the chapel hall. Subsequently, in that hall, a battle between officers and convicts ensued, in which five of the original group of rioting convicts were killed. That, however, is a story with which we are not now concerned.

The body of Henry Sullivan was found on the floor of the guard room. He was apparently lifeless and was removed to the front hall. A bullet had entered the back of his neck making its exit just below the right eye. While Sullivan was lying on the floor in the hall, certain officers, whose identity has not been established, discharged two bullets into his body. An autopsy was later performed. It disclosed that the bullet which passed through Sullivan's head had torn the cerebellum; had severed the cartoid artery; had caused half a teacup of clotted blood to accumulate in the cavity of the skull. On the other hand, the bullets discharged into his body had caused mere flesh wounds; they had not penetrated the lung cavity; they left the heart untouched. The physician performing the operation testified that the wound in the head caused Sullivan's death; that death therefrom was inevitable; that the chest wounds did not contribute to his death; that they did not even hasten death. It seems fairly clear, therefore, that Henry Sullivan died from a bullet wound received while he was in the guard room.

Did the bullet which killed Sullivan proceed from a pistol fired by an officer, or by a convict? The evidence upon the subject is wholly circumstantial. The captive officers testified that all the shots fired when they were in the guard room came from within the room; that they came from behind. Many officers, who had been stationed in the hall during the shooting, testified that no shots proceeded from the hall; that all the firing was done within the guard room. This testimony was in accordance with the probabilities. The officers in the hall were aware that the convicts were using the captive guards as shields; that the guards were doubtless in advance of the convicts. Therefore, they knew that a bullet from them might kill a fellow officer. They had previously desisted from firing for this reason; there was no need now to chance it, for soon convicts and guards would be overcome with gas and helpless. Moreover, Sullivan and two of the wounded officers had been shot in the back of the neck, so that the bullets must have come from behind as they were advancing toward the front hall door. Again, the convicts had repeatedly threatened to shoot the captive officers, if they were double-crossed by those in charge. It is highly probable that a convict, in an attempt to kill the warden, accidentally shot Sullivan who was stationed just behind him.

None of the captive officers, except Hugunin, throughout the riot, had ever carried a gun or other weapon. When Hugunin was dragged into the front hall, after the shooting, he had a pistol in his hand. It was a pistol which had been carried by the defendant Thomas prior to the dropping to the gas bombs. Thomas was standing behind Hugunin. When the gas came Hugunin fell on Thomas. He tells the story thus: ‘He had a gun in his hand and tried to point it towards me and I reached up and grabbed it and held it to the floor or got it to the floor as quick as I could and he said ‘look out or you will shoot yourself, the hammer is back’ and at that time the gun did go off and went through-I could feel the bullet strike my keys and went through my coat and struck these keys.' Again he said: ‘Before the gun went off, Thomas made the remark ‘give me that gun you son-of-a-bitch and I will blow your head off’ and I said ‘you give me the gun you son-of-a-bitch and I will blow your head off,’ and right after...