People v. Pekarz

On the 22d of May, 1905, the defendant was indicted for the crime of murder in the first degree, in that on the 24th of April, 1905, in the borough of Manhattan,

Upon the trial evidence was given tending to establish the following facts: The defendant, a native of Bohemia, came to this country on the 5th of January, 1905, when he was twenty-six years of age. He was a harnessmaker by trade, but had served three years in the army, and little else is known of his history before he came to the United States. He did not obtain employment for about three weeks after his arrival, and during that period he lived with his cousin, Mr. Ontl. He worked a short time in Brooklyn, but during the latter part of February he began to work for a harnessmaker named Scheider at 1784 First avenue in the city of Hew York, and continued in his employment until April 24th, the day of the homicide.

About the middle of March he began to live in the apart- ' ments of Sarah Rosenberg, the deceased, and he continued to live there until the day of her death. Her rooms, which were on the second floor of Ho. 332 East 101st street, consisted of a parlor in front, with a kitchen and two bedrooms in the rear. They were all in a line, with a door opening from each into the next. The defendant occupied the rear bedroom, which he rented of the deceased, and these two persons were the only occupants of the apartments. Sarah Rosenberg was about seventy-five years of age, according to the testimony of a neighbor who had known her for a short time, but according to the judgment of the physician who performed the autopsy, she was about sixty.

The defendant drank to excess and was frequently intoxicated. On one occasion in March he was so drunk that Mr.

About a week prior to the 24th of April the defendant said

For five days after April 24th nothing was seen of Sarah Posenborg by her neighbors, and as a stench began to come from her rooms, an entrance was forced and on the bed in the rear bedroom her dead body was found in an advanced state of decomposition. It was clothed and lying across the bed, with the legs hanging down in front. The bed clothes were thrown loosely over the body, a towel was spread over the face and the bed looked as if it had been used and not made up. A little bag or pouch was found tied with a cord about the neck. 'A hammer with blood spots on it was lying on the pillow about six inches from the head. It was the same hammer that the defendant had borrowed of his employer. There was no blood on the floor of the bedroom in which the body was found, but the bed and the cloth over the head were saturated with blood. The floor of the kitchen was covered with a dark substance like blood. On a dresser standing against the wall a bloody knife was found, which Mr. Scheider identified as one belonging to him, but which he had not lent to the defendant. The clothes which the defendant had on when he left his place of employment at noon on the 24th of April were found hanging in the room and the right leg and seat of the trousers were covered with blood. There was a dollar and some change in a pocket of the vest.

The physician who made the autopsy found evidence of five separate blows upon the head, which fractured the skull in several places. The nose and both of the upper jaws were also fractured. lie found an incised and punctured wound on each side of the neck, severing the main artery on either side. lie was of the opinion, although he expressed it with some doubt, that the wounds i;i the neck were inflicted before death. The blows were sufficient to cause death and the cutting of the arteries, independent of the blows, would have caused death.

Two days later the defendant was arrested and, after hav

At this time, which was seven or eight days after the homicide, the coroner observed that there was a tremor of his hands and head and a spontaneous contraction and dilation of the pupils of his eyes; that he had the symptorhs of alcoholism, shifting on the chair from one side to the other, general nervousness, attempts to say something and stuttering, involuntary movements of the tongue, all of which symptoms the

The defendant was sworn as a witness in his owm behalf and stated that prior to the 24th of April he drank heavily, not much during the week, but very heavily on Saturdays and Sundays. On the Saturday preceding the homicide he was paid ten dollars by Mr. Scheider and spent it in drink. He went to work Monday morning at seven without any breakfast and drank a glass of whisky and four or five pints of beer by noon. He then told Mr. Scheider that lie did not feel like working in the afternoon as he was too drunk, borrowed a hammer to fix his bed and went home for that purpose. The old lady told him that she had fixed the bed, and, to use the defendant’s own words, “ Thereupon I continued to talk words with her; thereupon the lady turned away to go into the other room, when I, from behind, knocked her down with the hammer. I looked at the lady as she was on the floor and she continued to breathe; thereupon I took a knife and cut her throat, when I noticed the cord around her neck. I lifted that cord and there wras on it a little pouch. I opened it and there was twelve dollars in it, and I took them and put them in my pocket. I put on this suit, put the old lady on the bed, covered her and left. I went back to Scheider’s place of business. I bought beer there. I don’t know whether I sang a song there. I did not tell the police officer that I killed this old woman for the purpose of getting money to buy more drink. I did not tell coroner Sell oler that I wefit home to get money, as I had no money, or that I knew that this old woman had money, and that' the reason I killed her was for the purpose of getting her money. I discovered that this woman had money when I picked up that cord and saw it there, that is, after the throat was cut.

On his. cross-examination ho said that he did not know why he killed the old woman, hut knew that he killed her. He did not want money. lie took the twelve dollars from her neck because she had no more use for it and used it himself. He did not know what he intended to do with the money when he took it. lie did not look elsewhere in the room for money, and as he saw the woman in that condition he was overcome by anguish and ran away. He borrowed a hammer from his boss to fix the bed, got a quarter of a dollar from him for lunch, and spent ton cents of it for that purpose. lie remembered distinctly what he had for lunch. On reaching home lie unlocked the outer door of his bedroom and entered. He went to fix the bed hut saw that it was alreadv fixed. The bed had been made up, the water emptied and a new pitcher of water was on the washstand. After he saw that the bed was all right, he washed himself and went into the old lady’s apartments, having the hammer in his hand. He wanted to show her he had the hammer and that he had intended to fix the bed himself, but she told him that she had done it. She asked him why he was not working and he replied that he told the boss be was too much under the'influence of liquor, but that ho intended to go to work the next day and to have a good sleep first. She was standing in the kitchen by the stove with her hack toward him when lie struck her with the hammer in his right hand. She fell, making 'no sound. He struck her once more when she was on the floor. lie did not know why ho hit her twice and did not remember where he put the hammer. He carried her from the kitchen to the bedroom and laid her on the bed. lie could not remember

Dr. Mansen, a medical expert called for the defense, testified, in answer to a hypothetical question, that in his opinion the defendant was suffering from an acute attack of alcoholic mania and was insane at the time of the homicide. On his cross-examination, in answer to another hypothetical question, which substituted “ conscious ” of his acts, in place of “ unconscious,” and assumed that the defendant asked the old woman for money, and, upon her refusing to give him any, struck heron the head with the hammer, took the purse, saw that she was still breathing, got a knife, cut her throat twice, took her into the bedroom, changed his clothes, locked the door, etc., he answered : “ That question, implying motive, would leave me in doubt. What I diagnose insanity upon, are two main features, here — absence of motive and the intense fury of the crime.” He further stated that if the defendant “ were conscious of his act he was in all probability sane.”

Dr. McDonald, called as an expert by the People, in answer to the same hypothetical question that was first put to the defendant’s expert, said that the defendant w-as sane but intoxicated at the time of the homicide.

We, therefore, pass to the consideration of the exceptions, for the judgment should not be disturbed unless some reversible error, duly raised by objection and exception, requires a new trial.

Mrs. May Ontl, at whose house the defendant stayed for a few weeks after his arrival in this country, testified that at times he was intoxicated, and when under the influence of liquor frothed at the eyes and mouth; that his eyes stuck out and he looked wild. She was then asked : “How, from the acts that you observed of the defendant in your presence dur

These questions were excluded upon the objection of the district attorney, and the defendant excepted.

The general rule running through the cases from an early day is that a lay witness may describe the acts of a person whose sanity is under investigation, and then state whether those acts impressed him at the time as rational or irrational. (People v. Spencer, 179 N. Y. 408 , 412; People v. Silver-man, 181 N. Y. 235 , 241; Matter of Meyer, 184 N. Y. 54 ; Clapp v. Fullerton, 34 N. Y. 190 .) The rule authorizes the witness to characterize the acts, but not the person doing the acts. The observer may state that the act impressed him as irrational, but not that the person impressed him as irrational. While an effort was made in the second question to present the subject in proper form, still the closing words called for a characterization of the person doing the acts, instead of a characterization of the acts themselves. Whether the distinction is logical or not, it seems to be well founded. . Of course, when an act is characterized as rational or irrational, it necessarily means the act of the rational or irrational human being named and for the witness to express what is necessarily implied does not change the necessary effect. On the other hand, it "is to be observed that a direct answer to the questions as asked would involve the opinion of the witness upon the question the jury were to decide, which is contrary to the general principle governing opinions of lay witnesses. (People v. Strait, 148 N. Y. 566 , 569.) ■

While the ruling was technically correct, according to the authorities, we think it can be justified upon a broader and more satisfactory ground. The witness did not describe any

The alienist called by the defendant was asked some searching questions on his cross-examination by the district attorney in relation to his experience as a witness in other criminal eases, for the purpose, duly announced, of testing his qualification as an expert. Complaint is made that the cross-examination embraced collateral and irrelevant subjects, which did not affect the credibility of the witness. We think, however, that the evidence was properly received, as it bore upon the competency of the witness as an expert, which we have held to be a subordinate issue. (Hoag v. Wright, 174 N. Y. 36 , 46.) In deciding that case we said : “ The competency of a witness (a professed expert) is a fact necessary to be known in order to learn the value of his opinion. While it is not an issue raised by the pleadings, it becomes a subordinate issue by the tender of the witness as an expert. As the opinion may determine the main issue, the question whether the opinion is relevant; that is, whether it is the opinion of one legally qualified to give it. is necessarily an incidental issue, as otherwise the main issue might be decided upon an irrelevant fact. It is incidental to the main issue because it attacks the founda

We also, declared that such a cross-examination should be confined within reasonable limits, and that limitation was not exceeded in the case now before us.

The trial court was asked to charge upon “ the subject of the good character of the defendant.” During the colloquy which followed it was conceded by the counsel for the defendant that no evidence had been offered upon that subject, and this is in accordance with the record. The court thereupon said: “ The prosecution could not offer any evidence to the contrary. The law presumes him to be innocent. If you choose to offer evidence affirmatively as to his good character, the prosecution have a' right to attack your proof and offer contrary proof. The law is silent as to character, but it presumes, as I have already said to the jury, the law presumes the defendant innocent. There is nothing touching character, gentlemen, nothing against the defendant, save the proof of this particular act.”

The defendant’s counsel, thereupon, asked the court to charge that “ in the absence of any testimony on the subject of the character of the defendant, the presumption is that the defendant’s character was good, prior to this offense.” The court said in reply: “ Oh, there is no evidence against it at all. I have said that to the jury already.” The defendant’s counsel then said: “ But I mean that the presumption that his character is good must be considered by the jury.” The court declined to charge further upon the subject, but added: “ There is no presumption against him at all. The presumptions are all in his favor on that head.”

The only exception taken was to the refusal to charge the last request, which raised no error.

Upon the trial of every indictment the defendant is presumed to be innocent. If a prima facie case is made out against him, he may show that his character was good, because such evidence bears upon the probability whether a person with such a character would commit the crime charged. If

When, however, no evidence has been given upon the subject by the defendant, who alone can open the door, his character is not in issue and he is not entitled to the instruction “ that the presumption that his character is good, must bo considered by the jury.” It is only affirmative proof of good character, quite independent of any presumption that one’s character is good until shown to be bad, that bears on the probability of guilt and entitles the accused to an instruction that his character must be taken into consideration. The presumption of innocence is vital and must be charged if requested, but the presumption of good character, when unsupported by affirmative proof, is practically an abstraction and need not be charged, even if requested. So far as it exists at all, it applies to all persons alike and extends with the same force to a Caasar Borgia as to a Saint Jerome. A presumption in favor of one party that cannot be rebutted by evidence given in behalf of the other, unless the former opens the door, is too feeble to be of practical value in the administration'of justice and a charge upon the subject would do no good but lead to confusion. “ Whore no evidence of general character has been given, the subject of character is not one for the consideration of the jury.” (People v. Bodine, 1 Denio, 281 ; State v. Ford, 3 Strobhart [S. C.], 517, 527; Donoghoe v. People, 6 Park. Cr. Rep. 120 , 125; Ackley v. People, 9 Barb. 609 ; Underhill on Criminal Evidence, § 76.)

We find no error in the record that calls for a' reversal. The defendant had a fair'trial. INTo injustice was done him

The judgment of conviction should be affirmed.

Cullen, Ch. J., Edward T. Bartlett, Werner, Willard Bartlett and Chase, JJ., concur ; Gray, J., absent.

Judgment of conviction affirmed.