People v. Green

The defendant appeals from a judgment of the County Court of Albany county upon a conviction of murder in the first degree, and also from an order denying a motion for a new trial. His notice of appeal assumes also to bring before us several other orders of an interlocutory character ; but as these do not constitute a part of the judgment roll as prescribed by section 485 of the Code of Criminal Procedure they do not appear to be re viewable under section 517 which provides what intermediate orders or proceedings maybe reviewed. However, we have considered every point argued before us in behalf of the appellant, irrespective of any technical objection which may exist as to the manner in which it is brought up.

The defendant shot and killed his daughter, Eva Green, a girl about fourteen years of age, in the township of New Scotland, in Albany county, on the 27th day of July, 1910. The homicide was committed with a rifle, on premises known as the Van Dyke farm, at about three o’clock in the afternoon, in the presence of the mother of the victim — who was also shot by the defendant, but not fatalty; a little brother five or six years old; two uncles of Mrs. Green, who were working on the farm at the time ; and a lad of thirteen, who was the son of one of these uncles. The defendant was

Immediately after the plea of not guilty was interposed the district attorney, upon notice to counsel for the defendant, applied to the Supreme Court at Trial Term for an order removing the indictment to the County Court of Albany county, which order was granted over the objection of the defendant’s counsel that the statute conferring jurisdiction to try capital cases upon the County Court was an ex pout facto law as applied to this homicide, because the homicide was committed on July 27, 1910, and the statute did not go into effect until the 1st of September in that year. On October 17, 1910, the defendant moved in the County Court for an order sending the indictment back to the Supreme Court to enable him to move at a Special Term thereof to change the place of trial on the ground that a fair and impartial trial could not be had in Albany county. This motion was denied as was also another motion, three days later, to retransfer the case to the Supreme Court on account of the objection to the jurisdiction of the County Court already mentioned. The indictment was then brought to trial in the County Court of Albany county at a term beginning on November 1, 1910, and resulted in the conviction of the defendant of the crime of murder in the first degree.

As happens in almost all cases of this character it is argued that the evidence did not warrant the jury in finding the existence of the premeditation and deliberation necessary to constitute the highest degree of felonious homicide. This contention compels us invariably to consider the facts with the utmost care. It will suffice, however, to make as concise a statement as possible of the circumstances of the tragedy.

The defendant, a man about forty years of age, lived with his family on a small farm in the southern part of Albany county, where he appears to have been occupied partly in farming and to a considerable extent in hunting. One of the

On the morning of the homicide the differences between Green and Mrs. Green had evidently grown so intense that the wife feai'ed harm at his hands. He was going to cut wood, and asked her to go with him and take the horse and cow to pasture. She went half way, when something in his demeanor or conversation, or both, caused her to turn back abruptly and leave him. “ I don’t think we were quite half way to the pasture,” she says, “when he stopped and asked me what I had been talking about down to his sister’s. I didn’t say anything. I turned around and went back home.” She then took her children and went to the house of a neighbor named Levi Hickerson. Subsequently she visited another neighbor by the name of L’Amourenx, but we know little about her movements until afternoon except that she and her children remained away from home. At about 3 o’clock p. m. they came to a wagon house on the Yan Dyke farm where Mrs. Green’s uncle, William J. Yadney was at work. After about fifteen minutes’ conversation with this uncle, she screamed, “ There comes Charlie! ” and the defendant was seen approaching on the road. At this time he had nothing in his hands and was apparently unarmed. He made no

After the shooting the defendant manifested some symptoms of contrition. He partly lifted his wounded wife and said, “ Why did I do it ? ” or “ What made me do it ? ” also, “ Why did yon let me do it; why didn’t you stop me ? ” When asked, however, to harness the horse and get a doctor, he said he couldn’t do that; “ The girl is dead and Emma is alive ; do what you can for her.” Then he turned around and walked away.

On the following day when under arrest Green was found to be suffering from.a gunshot wound in the head which lie'said he had inflicted upon himself with a revolver. He told a deputy sheriff that he had done the shooting on the day before with a thirty-thirty Savage rifle, which was in a woodshed near the Yanderbilt residence half a mile from his farm. He also said that he had shot himself with a Colt’s revolver which would be found near a swamp in the vicinity. The rifle and a pasteboard box of thirty-thirty cartridges were found in the place indicated by the defendant. Upon the box the "words “ Goodbye all ” appeared in handwriting but in whose handwriting was not shown.

The facts thus far narrated were proved upon the trial

This review of the facts suffices to show that the case was one for the jury and that we should not be justified in interfering with their conclusion unless some error of law Avas committed which was prejudicial to the defendant. We will now consider the contentions in his behalf to this effect. The law points in behalf of the appellant are three in number:

I. That the Albany County Court did not have jurisdiction to try the defendant for the crime of murder in the first degree.

II. That the defendant was deprived of his absolute right to make a motion to change the place of trial.

(1) As to the objection to the jurisdiction of the court:

The homicide for which the defendant was indicted was committed on the 27th day of July, 1910. By chapter 588 of the Laws of 1910, passed June 21, 1910, section 39 of the' Code of Criminal Procedure had been amended so as to give the County Court of Albany county jurisdiction to try and determine indictments for crimes punishable with death. This amendatory statute, however, did not take effect until September 1, 1910. As has been said, the defendant was tried in the County Court of Albany for murder in the first degree and convicted of that crime at a term beginning on the 1st day of November, 1910. It is contended that the County Court was without jurisdiction to try this indictment because the offense thereby charged was committed before the statute took effect which for the first time empowered the County Court to try capital cases. The learned counsel for the defendant insists that to hold otherwise is to make the amendatory statute an ex post facto law, forbidden by the Constitution of the United States'.

When the defendant shot and killed his daughter the law was that capital cases were not then triable by the County Court of Albany county, but would be triable by that court after September 1, 1910. The amendment to the Code of Criminal Procedure by which this change was brought about in nowise affected the rights of persons accused of murder in the first degree so far as any rules of evidence were concerned or relative to the nature or degree of the punishment prescribed. It did not assume to make any previously innocent action criminal or punishable, or to make a crime graver than it was when committed. It did not alter the situation of the defendant to his disadvantage in relation to his offense or its consequences simply because it made that offense triable in a County Court as well as in the Supreme Court. Hence

“ So far as mere modes of procedure are concerned,” says Mr. Justice Cooley in his classic treatise on Constitutional Limitations, “ a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only hy the courts, in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.” (Cooley’s Const. Lim. [7th ed.] p. 381; quoted approvingly in Thompson v. Utah, 170 U. S. 343 , 351 and in Thompson v. Missouri 171 U. S. 380 .)

In the present case, to try the defendant in the County Court of Albany co'unty instead of at a Trial Term of the Supreme Court did not deprive him of any protection which he would have enjoyed in the latter tribunal. For many years capital cases have been triable in the County Court of Kings county. We have not been referred to any case in which a statutory enlargement of the jurisdiction of a court has been deemed an ex post facto law. The position of counsel for the appellant is that one can be tried for a crime only in a tribunal which had jurisdiction over the offense at the time when the act alleged to be criminal was committed. If this were correct the Constitution of 1894 would have operated to prevent the trial of any capital cases which arose before its adoption (except in New York and Kings counties), for that Constitution abolished the Court of Oyer and Terminer, which

The power of the legislature to confer jurisdiction to try past offenses upon an existing court has been expressly asserted in Massachusetts by so eminent a judge as Chief Justice Si-taw, who says: “A new tribunal may be erected, or new jurisdiction given to an existing court, to .try past offenses, and this is not ex post facto P (Com. v. Phillips, 11 Pick. 28 , 32.) To the same effect is the case of State v. Cooler ( 30 S. C. 105 , 110), where this language of the great chief justice is quoted with approval; and in Vermont it has been held that the legislature may confer upon justices of the peace jurisdiction of an offense committed before the passage of the act. (State v. Welch, 65 Vt. 50 .) Upon reason and authority we are satisfied that the County Court of Albany county possessed jurisdiction to try the appellant for the crime of which he has been convicted.

(2) As to the alleged deprivation of the right to move to change the venue on the ground of prejudice :

This point is based on a misapprehension of the meaning and effect of the provisions of the Code of Criminal Procedure relative to the removal of indictments before trial (sections 344, 346). This indictment having been transferred to the County Court of Albany county, if the defendant wanted it sent to a term of the Supreme Court held in another county on the ground that a fair and impartial trial could not be had in the county where the indictment was pending (§ 344, subd. 2), he had only to apply to the Supreme Court at a Special Term in the district, upon notice to the district attorney, for an order of removal. (§ 344.) It was not necessary before making such application that the indictment should be sent back to the Supreme Court in Albany county. A motion to change the venue of a County Court indictment must be made to the Supreme Court under section 346 of the Code of Criminal Procedure, but that section does not require that the indict, ment shall first be transferred to the Supreme Court in the county where it was found. There was nothing to prevent

(3) As to the alleged error in receiving in evidence the cartridge box with the words “ Good-bye all ” written thereon :

There is some difference of opinion among the members of the court as to whether or not this was technically an error; but all agree that it was absolutely harmless. At most, the proof was designed to show an attempt at suicide by the defendant subsequent to the homicide; but such attempt was otherwise proved by the statement of the defendant to the deputy sheriff that he had shot himself with a revolver in a swamp in the rear of the Vanderbilt residence. The evidence did not relate to any direct issue in the case, and could not have been hurtful to the defendant, even if the jury assumed, what was not proved, that the words on the box had been written by him; for this only tended to establish what was otherwise established by uhcontradicted testimony, namely, an attempted suicide.

ISTo other exceptions are mentioned in the brief for the appellant; nor were any others called to our attention upon the oral argument. Nevertheless We have examined every one which the record contains and find none which presents reversible error. In some instances, if the objection of counsel had been more specific than it was the ruling of the trial judge might have been different, but it is clear that the numerous general objections were properly overruled; and such must be the view of counsel, or the exceptions would have been argued before us. The defendant has had a fair trial before a tribunal having jurisdiction to try the accusation against him, and has-been convicted upon legal evidence amply sufficient to sustain the verdict. It follows that the judgment upon that conviction should be affirmed.

Cullen, Oh. J., Gray, Werner, IIiscock, Chase and Collin, JJ., concur.

Judgment of conviction affirmed.