People v. Hüter

Between four and five o’clock on the morning of March 20th, 1905, the defendant broke into the bake-shop of Paul Sclieel, located in the basement of premises Ho. 901 Third avenue, between Fifty-fourth and Fifty-fifth streets in the city of Hew York. At the time, he had a horse' and wagon, stationed in front of the premises, in the care of one Joseph Pesce. He had removed from the bake-shop a crate of eggs and placed it in the wagon, and liad returned to the shop to get another crate, when he was discovered by a private watchman. The defendant, on discovery, ran out of the premises and told Pesce to run, and they both abandoned the property stolen as well as the horse and wagon, and ran northwardly along the east side of Third avenue to the corner of Fifty-fifth street, pursued by the watchman. The watchman had a night stick, and as he started to pursue the defendant he called for help, sounding his stick upon the walk, and then seeing Police Officer Enright upon the opposite corner of Fifty-fifth street, called to him to arrest the burglar. At the corner of Third avenue and Fifty-fifth street the defendant and Pesce separated, Pesce going westerly along Fifty-fifth street, while the defendant ran easterly. But by this time Police Officer Enright and a private citizen named Felix Stegman took up the pursuit of the defendant, the policeman calling upon him to stop or he would shoot. After running about three hundred feet upon Fifty-fifth street the policeman had so gained upon the defendant that he was but a few feet distant from him when the defendant suddenly drew his revolver and shot the policeman, producing a wound from which he died within a few hours.

In submitting the case to the jury the trial judge called the attention of the jurors to the definition of murder in the first degree, and after instructing them that in case they found that it was the deliberate and premeditated design of the defendant to kill Officer Enright in shooting him in the manner described that it constituted murder in the first degree ; but that in case the defendant did not intend to kill Officer Enright, and that the killing was without premeditation or

Under the provisions of section 183 of the Penal Code it is murder in the first degree if the killing of a person is not excusable or justifiable when committed from a deliberate and premeditated design to effect the death of the person killed, or of another; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise. The evidence in the case amply warranted the trial court in submitting to the jury the question of the defendant’s guilt under the first subdivision of the section referred to ; for, it distinctly appears that before the defendant undertook the burglary upon Scheel’s premises he provided himself with a loaded revolver and carried it upon his person. It was not an implement which would aid him in breaking into the premises, or in securing the property therein. The only use to which he could have well devoted it was to aid him in escaping in case he was discovered, and it is apparent that that was the use for which he designed it. I think, therefore, that the jury, under the circumstances of this case, would have been justified in finding the deliberate and premeditated design of the defendant to effect the death of any person who should attempt to prevent his escape from the premises in which the burglary was committed, and, in so far as the court charged u¡)on this provision of the Code, no question is now raised as to its correctness. (People v. Sullivan, 113 N. Y. 122 .) But, as we have seen, the trial court also submitted another provision of the Code to the jury, and

In the case of People v. Meyer ( 162 N. Y. 357 ) the defendant had broken into a church and had taken away the money from the poor box. His presence in the church was made known through an electric appliance connected with the box, which gave notice to an adjoining building. He was immediately sought for by a policeman and others, and on discovering their search he retreated through the church, out of a door at the rear of the altar into an alleyway which led to a school building which was used in connection with the church. The policeman followed him into the school room and there was shot and killed, after which the defendant broke out one of the windows and jumped to the street. In that case it was held that the defendant was properly convicted of the killing while engaged in the commission of a burglary. But the act, as we have seen, was committed while he was still upon' the property in one of the adjacent buildings and before he had broken out on to the street. He was, therefore, still engaged in the burglary.

In the case of Dolan v. People ( 64 N. Y. 485 , 487) Earl,

The trial court, as we have seen, instructed the jury that if they found that Officer Enright was killed by the defendant while attempting to escape from the premises of Schéel in the manner described by the witnesses,. that then their verdict might be for murder in the first degree. The defendant had committed a burglary. He had been discovered in the act. He was pursued by the watchman and by the policeman. He, therefore, knew that Officer Enright had the right to arrest him and when he found that he was about to be overtaken he drew his revolver and fired at the officer. By so doing he not only resisted arrest, but he committed another felony under section 218, subdivision 5, of the Penal Code, which provides that a person who assaults another to prevent or resist the execution of any lawful process or mandate of any court or officer, or the 'lawful apprehension or detention of himself, is an assault in the second degreee. Such an assault is made a felony and is punishable by imprisonment for not exceeding five years. The trial judge, in his charge, did not specifically call the attention of the jurors to this provision of the Oode, or charge that the defendant might be convicted thereunder. Possibly he had it in mind, but we think he did not so express himself with reference thereto as to call upon the jurors to determine the question of the defendant’s guilt or innocence thereunder. But, inasmuch as we have concluded to order a new trial, in which the question will doubtless be raised, we have concluded to

Assuming for the purpose of the argument that the defendant in firing the shot did not intend to kill, but only intended to frighten or so wound the officer as to prevent his effecting the defendant’s arrest, still, we have the fact that the shot caused the death of the officer. The killing,' therefore, was done by the defendant while he was actually engaged in the commission of a felony. But, notwithstanding this, a much mooted question arises in our minds as to whether the felony in which he was engaged at the time of the killing is merged in and became a part of the greater offense.

A person who attempts or engages in the commission of a felony, is not only chargeable with express malice, but also with being perversely wicked, evincing a depraved mind' and a disregard of human life, and if, while so engaged, he causes the death of a person, although unintentional, the legislature has seen fit to enlarge the crime and make it murder in the first degree, so that, if a person engaged in the commission of a rape and in order to accomplish the act resorts to violence, from which death is ' unintentionally produced and which would be only manslaughter were it not for the malice, wickedness and intent to rape, yet by reason thereof it is made murder" in the first degree. (Buel v. People, 78 N. Y. 492 .) The same is true with refez-ence to the unintentional killing of a person while engaged in the commission of a robbery, a burglary or an attempt to escape from imprisonment. There maybe no intent to kill, but the violence having been perpetrated while engaged in the robbery, burglary or attempt to escape imprisonment, it is murder in the first degree. (Cox v. People, 80 N. Y. 500 ; People v. Flanigan, 174 N. Y. 356 ; People v. Johnson, 110 N. Y. 134 .) On the other hand, it has been held, where the defendant seized a . car hook and struck a person over the head on alighting from a street caz-, thus crushing his skull, which resulted in death, that the assault and battery was merged in the ci-ime of murder and that the request to charge that the act was done in the com

Cullen, Ch. J., "Werner, Willard Bartlett and Hisoook, JJ., concur; O’Brien and Vann, JJ., concur, except as to the point last discusséd in the opinion, as to which they express no opinion.

Judgment of conviction reversed, etc.