People v. Vollmer

• Decision Date: 19 July 1949
• Citation: 299 N.Y. 347,87 N.E.2d 291
• Court: New York Court of Appeals Court of Appeals
• Parties: People v. Vollmer

299 N.Y. 347

87 N.E.2d 291

PEOPLE

v.VOLLMER.

Court of Appeals of New York.

Decided July 19, 1949.

Appeal from Supreme Court, Appellate Division, Third Department.

Henry Vollmer convicted of manslaughter in the first degree in the Montgomery County Court(Crangle, J.) rendered November 10, 1947.From a judgment of the Appellate Division of the Supreme Court, in the First Judicial Department entered January 7, 1947, 274 App.Div. 1011, 85 N.Y.S.2d 1, which affirmed the conviction, defendant appeals by permission of the presiding justice of the Appellate Division of the Supreme Court.

Reversed and new trial ordered.

Chandler S. Knight, Amsterdam, for appellant.

Charles S. Tracy, District Attorney, Amsterdam, for respondent.

DESMOND, Judge.

Defendant, proprietor of an Amsterdam, New York, tavern, indicted for murder, second degree, was convicted of the crime of manslaughter, first degree, for the killing of Charles Amberger, a customer in the tavern.The Appellate Division, Third Department, affirmed the judgment, and its Presiding Justice granted defendant a certificate permitting an appeal to this court.

The County Judge's charge told the jury that it might, if guilt had been shown beyond a reasonable doubt, convict defendant of murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree.The jury's finding against defendant as to the second of those listed crimes necessarily meant, under the language of the court's charge and under the definition in section 1050 of the Penal Law,Consol.Laws, c. 40, that defendant had killed Amberger: 1.While ‘engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or, 2.In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.’

The record contains no proof that defendant was committing, or attempting, any such misdemeanor as the statute contemplates, nor does it contain any proof of a killing either in a ‘cruel or unusual manner’, or ‘by means of a dangerous weapon.’The conviction, therefore, was unlawful.

1.The only misdemeanor defendant was committing, or attempting, was an assault on Amberger.But that was not a separate misdemeanor, but a component of, and merged into, the homicide on trial.People v. Stacy, 192 N.Y. 577, 85 N.E. 1114, affirming119 App.Div. 743, 104 N.Y.S. 615 and in 1908, seems to have held to the contrary, but People v. Stacy, supra, though not mentioned in People v. Grieco, 1934, 266 N.Y. 48, 193 N.E. 634 was necessarily overruled thereby.People v. Grieco, supra, cannot be read except as holding that, when an assault results in death, the assault misdemeanor is merged in the manslaughter.Whatever else the majority opinion said in the Grieco case, the court did flatly announce that it had reached the conclusion ‘that the misdemeanor charge was merged in the charge of manslaughter in the first degree’, 266 N.Y. page 54, 193 N.E. page 636, and, if that were true as to the misdemeanor there proved against Grieco, it is, a fortiori, true here; futhermore, Judge O'Brien's dissenting opinion in the Griecocase, supra, 266 N.Y. page 57, 193 N.E. page 637, shows his realization that the Stacy case was being overruled on the question of merger.Finally, it should be noted that, a year later, in People v. Lazar, 271 N.Y. 27, 29, 30, 2 N.E.2d 32, 33, Judge Hubbs, who had written the Grieco majority opinion, cited it on behalf of a unanimous court, as a holding that an assault which results in a homicide, is merged in the homicide.The Lazar opinion, supra, expresses also the unanimous view of the court that the rule as to merger should be, and is, the same in manslaughter, first degree, as in felony murder.Penal Law, s 1044, subd. 2;seePeople v. Wagner, 245 N.Y. 143, 148, 156 N.E. 644, 645;People v. Luscomb, 292 N.Y. 390, 395, 396, 55 N.E.2d 469, 471, 472.

2.There was nothing ‘cruel and unusual’ about this assault, in the sense that the statute used those words.No applicableNew York decisions define that statutory phrase (see1937 Report of N.Y. Law Revision Commission, p. 731 et seq.) and it must be read as the average intelligent man would read it.To be ‘cruel and unusual’ the manner of commission of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric.SeeState v. Knoll, 72 Kan. 237, 83 P. 622.Whatever be the limits of the phrase, it cannot be applied, we hold, to a case...