People v. Wagner

• Decision Date: 03 May 1927
• Citation: 156 N.E. 644,245 N.Y. 143
• Parties: PEOPLE v. WAGNER.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 143

156 N.E. 644

PEOPLE

v.WAGNER.

Court of Appeals of New York.

May 3, 1927.

William Wagner was convicted of murder in the first degree, and he appeals.

Affirmed.

Appeal from Supreme Court, Trial Term, Kings County.

Edward J. Reilly and Gardiner Conroy, both of Brooklyn, for appellant.

Charles J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh, of Brooklyn, of counsel), for the People.

KELLOGG, J.

The indictment charged the defendant with the commission of the crime of murder in the first degree in that on November 29, 1926, he ‘willfully, feloniously, and with malice aforethought shot and killed Peter Basto with a revolver.’ The defendant was tried, found guilty of the crime as charged, and sentenced to suffer the penalty of death. From the judgment of conviction entered upon the verdict of the jury the defendant now appeals.

The case for the prosecution was rested chiefly upon the testimony of one Lulu Saddlemire. Miss Saddlemire occupied a threestory house in the borough of Brooklyn and rented the rooms therein to various lodgers. Her testimony was substantially as follows: The defendant, on the evening of Saturday, the 27th of November, 1926, called at the Saddlemire house and applied to Miss Saddlemire for the lease of a room. He was shown a room on the third floor which he engaged for a week. He paid the rental demanded in advance, carried his satchel to the room, and began its occupancy that evening. On the morning of the following Monday, the 29th day of November, Miss Saddlemire stationed herself in a front room upon the first floor of the house. Through the windows of this room, before 9 o'clock, she observed each of her lodgers, except the defendant, leave the house. Shortly after their departure Miss Saddlemire heard footsteps overhead. They seemed to be the footfalls of a man walking back and forth between the bedrooms on the second floor and the bathroom on that floor. Suspicions of the defendant thereupon crossedher mind, for the defendant was the only lodger left in the building, and his room was upon the third floor, not upon the second. Accordingly, Miss Saddlemire mounted the stairs to the second floor. As she stepped upon the landing she observed that the bathroom door was partly open and she saw the defendant peeking at her through the opening. The door was closed suddenly, and Miss Saddlemire walked into an adjoining room. As she busied herself with room work in one of the bedrooms she again saw the bathroom door open on a crack. The defendant again peeked out, and, seeing Miss Saddlemire, again closed the door. After the lapse of about 15 minutes, the defendant opened the door and stood facing Miss Saddlemire with his right hand behind his back. A conversation ensued between the two, during which Miss Saddlemire inquired and the defendant made answer in relation to defendant's previous place of abode and his present employment. Finally the defendant stepped forward and struck Miss Saddlemire a blow upon the head with an object wrapped in a towel. A struggle between the two followed, in the course of which Miss Saddlemire several times cried out, ‘Papa! Papa!’ for her father, and ‘Peter!’ for Peter Basto. The defendant grabbed Miss Saddlemire by the throat with one hand, while with the other hand he tried to close her mouth. Such was the position of the two when Peter Basto rushed upstairs. When Peter Basto saw the defendant with his hand upon Miss Saddlemire's throat he struck the defendant a blow upon the head. The defendant released Miss Saddlemire and struck back at Peter Basto. Miss Saddlemire broke away, ran down the stairs, opened the front door, and began calling for help. While stationed at the front door she heard two or three pistol shots from the floor above, and thereupon heard Peter Basto cry, ‘I am murdered! I am murdered!’ The witness, undaunted by the sound of bullets, rushed upstairs. She saw Peter Basto and the defendant lying side by side on the floor. She took off her shoe and with it began to beat the defendant upon the head. The defendant arose, struck Miss Saddlemire a blow on the face and made his escape, apparently through the roof. The defendant shortly afterward was captured by the police. Meanwhile, Peter Basto, suffering wounds from three bullets which had lodged in vital bodily parts, had come to his death.

The story told by Miss Saddlemire was confirmed by the defendant in answers made by him soon after his capture to questions put by the district attorney. He stated that he had purchased the pistol with which he shot Peter Basto above five days before he went to room at the Saddlemire house. He identified a ‘black-jack’ as the instrument wrapped in a towel with which he had struck Miss Saddlemire on the head. He said he struck her because she asked for references. He stated: ‘She caught me trying to get out of the house with some clothes I robbed from the rooms up there.’ He said he carried the pistol with which he shot Basto in his vest pocket; that after his mix-up with Basto they rolled on the floor; that he was lying underneath Basto when he pulled his pistol from his vest pocket and shot Basto in the body three times. He stated that he had started, on the morning in question, to steal clothes from the various lodgers in the house; that the doors of the rooms were unlocked; that all he had to do in order to enter was to turn the knobs of the doors; that he put the things he stole in two bags; that he kept the bags in the bathroom; that he could not make a get-away with his loot because of Miss Saddlemire's interference. He identified the things which he stole. Among them were two suits of clothes. The owner of one of these suits testified that he had paid $60 for the suit and had used it only 12 times. The owner of the other suit testified that it had cost him $30. There were, also, among the articles stolen, a photographic camera, and dental bridge work belonging to a roomer.

The defendant does not now contend that the evidence was insufficient to support the verdict. His plea for a reversal is grounded solely upon certain alleged errors in the charge of the trial judge to the jury. The judge charged that the jury might find the defendant guilty of murder in the first degree in that the killing by him of Peter Basto was committed ‘from a deliberate and premeditated design to effect’ his death, within subdivision 1 of section 1044 of the Penal Law (Consol. Laws, c. 40), or that the defendant committed the crime named in that ‘without a design to effect death’ he killed Peter Basto while ‘engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise,’ within subdivision 2 of that section. He further instructed the jury that they might find that the killing was effected while the defendant was engaged in the commission of any one of three different felonies, to wit, the felony of (1) burglary, (2) grand larceny, and (3) assault in the second degree. He further stated that the jury might find that the defendant was engaged at the time of the killing in a felonious assault either upon Miss Saddlemire or upon Peter Basto. The defendant finds no fault with the charge in so far as the jury were instructed that they might find him guilty of a deliberate and premeditated killing; nor in so far as they were instructed that they might find that the killing was effected while he was engaged in the commission of the felony of burglary or the felony of grand larceny. His complaint is with that portion of the charge whereby the jury were instructed that they might find the defendant guilty of murder in the first degree in that he killed Peter Basto while engaged either in a felonious assault upon Lulu Saddlemire or in a felonious assault upon Peter Basto.

[1] We think it self-evident that the trial judge committed error when he charged that the killing of Peter Basto may have been effected while the defendant was engaged in a felonious assault upon him, and, basing their conclusion thereupon, might determine that the defendant was guilty of murder in the first degree. If this were not error, then every intentional killing, by means of a...