People v. Van Norman

• Decision Date: 14 July 1921
• Citation: 231 N.Y. 454,132 N.E. 147
• Parties: PEOPLE v. VAN NORMAN.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 454

132 N.E. 147

PEOPLE

v.VAN NORMAN.

Court of Appeals of New York.

July 14, 1921.

James Van Norman was convicted of murder in the first degree, and from the judgment entered upon the verdict, he appeals.

Reversed, and new trial ordered.

Appeal from Supreme Court, Trial Term, Suffolk County.

Alex G. Blue, of Patchogue, and Nathan O. Petty, of Riverhead, for appellant.

Leroy M. Young, of Babylon, for the People.

POUND, J.

The indictment charges defendant with the crime of murder in the first degree committed as follows:

‘The said James Van Norman, on or about the 15th day of December, 1920, at the town of Huntington, in the county of Suffolk aforesaid, unlawfully and feloniously shot and killed one Wilbur E. Severance with a revolver, the said James Van Norman being then and there engaged in the commission of a felony, to wit, assault in the first degree upon the person of one Amza W. Biggs by shooting the said Amza W. Biggs with a loaded revolver, with intent to kill him.’

The facts established by the evidence were as follows: Defendant and three others, Severance, the deceased, Selser, and Smith, went from New York to Huntington, in Suffolk county, on the night of December 15, 1920. The first three named burglarized the house of one Jeavons, leaving Smith outside to watch. Smith left them, and notified the police. They were afterwards met by Biggs and Wenzel, officers, and Cisco, a colored driver, in a Ford touring car. Defendant and his companions were placed under arrest, and ordered into the car by the officers. After they had proceeded about a mile and a half toward the police station, defendant discharged a 44-caliber revolver six times in quick succession at Biggs. The first and sixth shots struck Biggs, and one shot killed Severance. Biggs meanwhile fired three shots from his revolver, each of which slightly wounded defendant.

At the conclusion of the case the court refused to instruct the jury that the defendant might be convicted of a lesser degree of the crime charged in the indictment (Penal Law [Consol. Laws, c. 40] § 610), and specifically refused to charge that if defendant assaulted Biggs with a loaded revolver without deliberation and premeditation, but with intent to kill him, and killed Severance instead, the offense would be murder in the second degree.

[1] The jury should have been instructed that the prisoner might be convicted of a lesser degree of felonious homicide than murder in the first degree. The learned trial judge relied on People v. Schleiman, 197 N. Y. 383, 390,90 N. E. 950, 953 (27 L. R. A. [N. S.] 1075,18 Ann. Cas. 588), in which it was held that the trial judge committed no error on the trial of a defendant on an indictment for murder alleged to have been committed by him while he was engaged in commission of a burglary when he refused to charge the different degrees of crime and instructed the jury that they must either find the defendant guilty of murder in the first degree or not guilty. The reason for this holding was that:

‘Under such circumstances, the power to convict of a lesser degree of felonious homicide which belongs to the jury in cases where the degree depends upon the intent cannot properly be exercised.’

Willard Bartlett, J., writing for the court, said:

‘Upon a murder trial such instruction may properly be refused only where the evidence is directed toward the establishment of a kind of murder in which the intent to kill is immaterial.* * * The conditions are exceptional, however, which warrant a refusal to instruct the jury as to their power to convict of a lower degree of the crime charged for which the defendant is upon trial, and great care should be observed, as was done here, not to withhold such instruction unless the case is one like that before us, where...