People v. Johnson

The indictment charged the defendant with the murder of Katharine Johnson, his wife, on the 15th day of May, 1905, at the city of Yonkers, in the county of Westchester. Upon the trial it appeared that the defendant was married to the deceased about thirteen years before the homicide, but they had not lived together for the period of eight years immediately preceding. She was thirty-eight years old and he was thirty-seven. They had two children, Stephen, aged twelve, and Edward, aged eight or nine. The deceased lived with her mother at Elo. 13 Moquet place, in the city of Yonkers, and the children lived with her. While the defendant did not live with his wife he sought her company, and they met occasionally. He frequently expressed to her his desire that they should go to housekeeping again, and he often sent or gave her money. He was proud of his children and warmly attached to them. Evidence was given tending to show that within eight months prior to her decease, on four .separate occasions, he had threatened his wife with violence. In September, 1904, after a slight disagreement, he put his hand upon her, but not forcibly, so far as appears, and said: “ Eor two pins I would shut your wind off.” In the month of December following he said to her, “ I will smash you. I

This is substantially all the information that the record furnishes as. to the relations of the parties and their conduct toward each other until May 15th, 1905, the day of the homicide. The defendant did not go to work that day, because he had a sore foot. He was living with his sister at Ho. 39 River-dale avenue, in the city of Yonkers, and at a little after eight o’clock in the evening he wrote a note to his wife asking her why she did not come down on Friday night as she had promised. He sent this note to her by his niece, and she sent back word by the same messenger that she was not coming down any more and that she didn’t want him “ coming up there.” He soon started for the house where his wife resided and reached there at about nine o’clock in the evening. She was sitting on a little porch in front with her two sons and a ' friend named Margaret O’Brien. Hpon arriving where they were the defendant stood in front of the porch, rested his left hand o'n the banister, and with his right hand .under his coat on his hip pocket, he said to his wife: “ 1 want to see

The district attorney produced this statement during the trial, and, handing it to the counsel for the defendant, said that he would offer it in evidence if the counsel wished “ it to go in evidence; if he objects it cannot go in evidence.” The next day it was read in evidence, the counsel for the defendant saying that he had no objection, and as the defendant was not sworn and no witness was called in his behalf, we give the substance of it as his version of what occurred.

After stating that in answer to his note to his wife she sent back word that she was not coming down any more and did not .want him to come up there, he continued: “ This message was delivered by my niece in person. After I received the message from my niece I felt kind of mad and got ready, dressed myself and went up to see her and when I got up there I found her sitting on the stoop in company with another girl, named Maggie O’Brien. When I got to the stoop I said to my wife, ‘ I want to see you ’ and she said, 61

The case was clearly for the jury, both as to the alleged guilt of the accused and as to the degree of his guilt. The killing was admitted. There was some evidence of motive and ample evidence of time for deliberation. The defendant said in his statement, not by eager assertion, but quite incidentally, that he shot his wife by accident. In response to the question why he waited so long after the last talk before he shot her, he answered that he waited to see if she wouldn’t give him any satisfaction. He had never carried the revolver before, although he had owned it for some time, and he could not tell why he carried it that night. When asked if he thought he would kill her if she didn’t do what was right, he answered that he did not intend to kill her, but thought he would scare her.

It was for the jury to say what part of the statement was true and what part, if any, was false. By accepting a part as true they were not bound to accept all as true, if they thought it was unreasonable under the circumstances. As to what was said and done at the time of the shooting there is no material difference between the statement of the defendant and that of the witnesses for the People, except as to the remark said by the younger boy to have been made right after the shot' was fired. What was passing through the mind of the defendant during the period of two minutes which elapsed after the final announcement by the deceased that she would treat him no better, we cannot say, but the jury had the right to infer that during that period he decided to kill and then shot intending to kill. They are presumed from their verdict to have so found and we do not think their conclusion was unreasonable or against the weight of evidence. The verdict must stand unless some error of law, raised by objection and exception, was committed on the trial, or some injustice was done the defendant, which, although not objected to, was so grave and serious in character that we must presume it affected the result.

Evidence of recent threats have always been held competent in cases like this and they are regarded as of especial importance when the accused claims that the homicide was excusable or justifiable. (People v. Gaimari, 176 N. Y. 84 , 95.) The threats objected to were made in December, about five months before the homicide and when they were received it had already been shown that the defendant had made similar threats in March, which was about two months, and on the twenty-first of April, which was less than one month before the homicide. Even remote threats are competent when it appears that they were repeated from time to time until shortly before the commission of the offense alleged. They show that ■ the state of the defendant’s mind toward the deceased, as disclosed thereby, wras continuous and bear with more or less force, according to the circumstances, upon malice and premeditation. Repeated threats, covering a period of nearly nine years, were held competent in Commonwealth v. Holmes ( 157 Mass. 233 , 210) and four years in State v. Hoyt ( 46 Conn. 330 , 336). Threats, not repeated, made two years before the homicide were received in Jefferds v. People (5 Parker Crim. Rep. 522, 559) and fourteen months before in Commonwealth v. Crowe ( 165 Mass, 139 , 141).

During the trial the young lad Edward Johnson, who said he was eight years old, but his grandmother swore he was nine, was called as a witness for the People. The record does not disclose that the trial justice examined the child before his statement was taken, but simply says that when he was called as a witness on behalf of the People the court said : “ Take his statement without being sworn.” Thereupon his statement was taken without objection or suggestion of any kind and, so far as it goes, it is in substantial accord not only with the evidence of the other two eye witnesses but with the statement of the defendant himself, except in the single particular already pointed out.

Section 392 of the Code of Criminal Procedure, as amended by chapter 279 of the Laws of 1892, is as follows: “ The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever in any criminal proceedings a child actually or apparently under the age of twelve years offered as a witness does not in the opinion of the court or magistrate understand the nature of an oath, the evidence of such child may be received though not given under oath if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall be held or convicted of an offense upon such testimony unsupported by other evidence.”

It is now insisted that we must presume from the silence of

It is further contended that the statute is void because it Violates the guaranty of the Constitution that no person shall be deprived of life, liberty or property without due process of law. Due process of 'law means “ law in its regular course of administration through the courts of law ” (Miller on the Constitution, vol. 2, p. 664); or “ a regular trial according to the course and usage of the common law.” (Lincoln’s Const. Hist. vol. 4, p. 37.) These definitions are in accordance with the rule laid down in Magna Cliarta where the phrase originated : “ Ho man, of what estate or condition that he be,

Due process of law does not mean that the legislature cannot change the rules of evidence as they existed at common law, nor make one a competent witness who was not such at common law. Indeed the provision “ that no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief,” seems to leave the door open in all other respects. (Const, art. 1, § 3.) Statutes making parties and the husband or wife of a party, competent to testify ; changing the rule regulating challenges to jurors ; providing for a special commissioner of jurors and for special juries in criminal cases; authorizing the perpetuation of certain testimony respecting the title to a particular estate; authorizing the physical examination of the plaintiff in actions for personal injuries ; declaring what shall be received by the courts as presumptive evidence, provided the fact proved has a fair connection with the main fact to be proved; declaring the effect of recitals in tax deeds, and of ex parte affidavits in town-bonding acts and statutory foreclosures; and changing in other respects the common-law rules of evidence and the common-law competency of witnesses, may be referred to as instances sustained by the courts. (Stokes v. People, 53 N. Y. 164 , 171; Howard v. Moot, 64 N. Y. 262 , 268 ; Board of Comrs. of Excise v. Merchant, 103 N. Y. 143 ; People v. Turner, 117 N. Y. 227 , 233 ; Lyon v. Manhattan Ry. Co., 142 N. Y. 298 , 303; People v. Cannon, 139 N. Y. 32 ; People v. Dunn, 157 N. Y. 528 ; People v. Ebelt, 180 N. Y. 470 ; Matter of Davies, 168 N. Y. 89 ; People v. Hall, 169 N. Y. 184 ; People v. Snedeker, 160 N. Y. 350 , 357; People v. Petrea, 92 N. Y. 143 ; Walter v. People, 32 N. Y. 147 ; Hand v. Ballou, 12 N. Y. 541 ; Rexford v. Knight, 11 N. Y. 308 ; Terry v. Anderson, 95 U. S. 628 ; Mitchell v. Clark, 110 U. S. 633 .)

In People v. Turner (supra, p. 233 ) Chief Judge Huger

The language of Judge Earl in Board of Comrs. of Excise v. Merchant (supra, p. 148 ) is more guarded and is a more exact exposition of the law : “ The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations, it is not easy to define precisely what they are. A law which would practically shut out the evidence of the party and thus deny him the opportunity for a trial would substantially deprive him of due process of law. It would not be possible to uphold a law which made an action prima facie evidence of crime over which the party charged had no control and with which lie had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense and to submit all the facts to the jury to be weighed by them, upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can bo assailed upon constitutional grounds.”

The Constitution protects rights, but leaves the control of remedies to the legislature, subject to the exception that it .cannot deprive a party of all remedy whatever. The statute in question extinguished no right, but simply so regulated the procedure as to admit the evidence of a child under the age of twelve years, provided the court should be of the opinion that he did not understand the nature of an oath, but was possessed of sufficient intelligence to justify the reception of his statement. It limits the effect of such testimony by providing that no conviction can be founded

The charge of the court, although not excepted to, is now criticized in two respects, one of which requires no comment, and the other is worthy only of the remark that the portion now objected to for the first time, if read by itself, would not state the law correctly, hut when read in connection with what immediately preceded and followed, discloses no error. A charge must be considered as a whole and if when so read no error appears, none was committed, even if a detached portion when read by itself might mislead the jury. If a charge lacks clearness in any respect, it is the duty of counsel to remove the doubt by a request for further instructions and if he fails to get them an exception will protect the rights of his client.

We find no error in the record, whether excepted to or not, that calls for a reversal of the judgme'nt, which should, therefore, be affirmed.

Cullen, Ch. J., O’Brien, Haight, Werner, Willard Bartlett and Hiscock, JJ., concur.

Judgment of conviction affirmed.