People v. Stevens

The evidence establishes without dispute that the defendants made preparation to rob the National Bank of Lacona in broad daylight. Pursuant to this plan these two defendants entered the bank during the noon hour. At that time the decedent, Charles M. Salisbury, the chairman of the board of directors, was seated at a desk in one corner of the bank. One defendant had a thirty-two-calibre revolver and the other a twenty-five-calibre automatic pistol. At the point of these loaded guns they ordered the bank teller and the bank clerk to proceed to the corner of Salisbury’s desk. When Salisbury arose the defendants ordered him back but he was slightly deaf and either did not hear or was sufficiently brave not to acquiesce. The defendants both shot at Salisbury, the bullet from the gun of one defendant entered his thigh and the bullet from the other passed through his heart. After the defendants were arrested they made full confessions.

The defense of the defendant Waterbury was that he was insane and the defense of the defendant Stevens that he acted under the coercion of Waterbury. Waterbury did not take the stand as a witness. Both defenses as well as that of abandonment were duly submitted to the jury and duly rejected by them and the evidence sustained the findings of the jury.

Upon the request of the District Attorney the court submitted the case to the jury on a felony murder count only and charged that it must find the defendants guilty of murder in the first degree or acquit them. It is argued that this constitutes error which requires us to reverse the conviction. It is true that where there is evidence from which the jury could find that the defendants are guilty of a lesser crime, the jury must not be left with the alternative of convicting of murder in the first degree or acquittal. On the other hand, in a felony murder case where the facts are susceptible of one interpretation only, the defendants are guilty of murder in the first degree

The judgments of conviction should be affirmed.

(dissenting). The defendants have been convicted of murder in the first degree. The evidence establishes without dispute that the defendant Waterbury conceived the idea of robbing the National Bank of Lacona in the village of Lacona in Oswego couty. He communicated his idea or plan to the defendant Stevens, and by persuasion, or, as Stevens claims, by coercion, enlisted his co-operation. After preparations for the proposed robbery had been completed, the two defendants proceeded together to the bank building. They entered it during the noon hour. At that time Mr. Charles M. Salisbury, the chairman of the board of directors, was seated at a desk in one corner of the bank. The bank teller and a bank clerk were also in the bank. One defendant had a thirty-two-calibre revolver and the other a twenty-five-calibre automatic pistol. At the point of these guns they ordered the bank teller and the bank clerk to proceed to the corner near Salisbury’s desk. When Salisbury arose the defendants ordered him to move back also. He was seventy-nine years old and

To meet this evidence the defendant Stevens testified that in joining in the proposed robbery he acted solely under coercion exercised upon him by the defendant Waterbury. Waterbury did not take the stand as a witness, but evidence was produced in his behalf intended to show that he was insane. The evidence on neither point was, perhaps, very persuasive though sufficient to raise questions of fact for the jury to pass upon. Stressing some details in the testimony, otherwise without significance, as to what was said by the defendants, or one of them, before the shooting, the defendants’ counsel urged that there was also a question of fact as to whether the killing occurred during the commission of the attempted robbery or whether, on the other hand the robbery had been abandoned before the killing.

The indictment contains two counts. The first count charges in common law form that the defendants killed Charles M. Salisbury “ with force.and arms, feloniously, willfully, and of their * * * malice aforethought, and with a deliberate and premeditated design of them and each of them * * * to effect the death of him, the said Charles M. Salisbury.” The second count charges that the defendants killed Charles M. Salisbury while “ engaged in the commission of a Felony, to wit: the crime of an Attempt to Commit the Crime of Robbery in the First Degree. ”• It alleges, incidentally, that the defendants acted “ feloniously, willfully, and with * * * malice aforethought, and with a deliberate and premeditated design.”

The trial judge thereafter instructed the jury that the charge against the defendants was the killing of Charles M. Salisbury in the commission of a felony “ pursuant to their common plan or design ” and that “ the crime so charged * * * is murder in the first degree.” He told the jury that the defendant Stevens claimed “ that he had reasonable apprehension that he was to be killed by the defendant Waterbury, and he excused himself by the fear of duress,” and the judge further instructed the jury that “ if you find under the evidence that he [Stevens] was compelled to do the things which he did do, and that he had reasonable apprehension on his part that he was liable to be killed or receive grievous bodily injury in case he refused, then in that case he is excusable.” The trial judge then explained to the jury the nature of the defendant Waterbury’s claim of insanity and that if he was laboring under such a defect of reason as not to know the nature and quality of his act or not to. know that it was wrong, the jury might acquit him.

In his main charge the trial judge made no reference to any possible claim that the defendants had abandoned the attempted robbery before they shot Mr. Salisbury, and it may be doubted whether there is any evidence upon which such claim could reasonably be based, but at the defendants’ request the trial judge did thereafter charge the jury “ that if they find from all of the evidence that at the time of the firing of the fatal shot which mortally wounded Mr. Salisbury, the defendants, Stevens and Waterbury, had abandoned the attempt of robbery,

Section 610 of the Penal Law provides: “ Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime.” The indictment, in both counts, charged the prisoners with the crime of murder, in the first degree. In spite of the mandate of the statute the trial judge refused the request of the defendants’ counsel that upon the trial of the indictment the jury might convict the defendants of a lesser degree of homicide. The only charge submitted to the jury was the charge of felony murder in the second count of the indictment and the trial judge stated that there were no “ lesser degrees ” of felony homicide. In refusing the request of counsel that the jury be instructed that “ if from all of the evidence they find the defendants or either of them are guilty of homicide in some degree, but they have a reasonable doubt as to which one or more degrees either one or both are guilty of, then they may find them guilty of the lowest of those degrees only,” the court said: “ that would be true under common law.”

The jury retired at seven-twenty p. m. to commence their deliberations. The evidence established beyond dispute that the two prisoners had come to the bank, prepared to rob it, and that while in the bank they had killed an aged officer of the bank. Upon that evidence

The administration of justice is not so tightly bound by legalistic formulas that the life or death of an accused may be made dependent upon the manner in which a charge is formulated in the indictment. Certainly the probative value and the effect of evidence presented to the jury cannot be changed by the form of an indictment or by choice of a District Attorney to have the case submitted to the jury under one count of an indictment rather than another.

In People v. Schleiman ( 197 N. Y. 383 ) this court said that “ where the indictment charges murder in the first degree in the common-law form only or murder in the first degree committed from a deliberate and premedi

If there ever was room for difference of opinion as to the scope of the decision in that case, it has been removed

In that case the evidence showed that one Masterson was killed by a person engaged in an attempted robbery,

That is not the case here. The testimony of the bank teller and the bank clerk, if believed, leads to the conclusion that Stevens held the twenty-five-calibre automatic pistol and fired the fatal bullet; on that point their testimony is contradicted by the confessions of the defendants who agree that Waterbury held the pistol from which the fatal bullet was shot, while the bullet from the revolver held by Stevens inflicted only a flesh wound. Thus the jury, even though it had chosen to reject or disregard completely the testimony which showed a concerted attempt at robbery or had found that the attempt was abandoned before the shooting, might still have convicted either Stevens or Waterbury of murder in the first or second degree on a finding that he actually shot the deceased with a design to effect his death, or might have found both guilty of some degree of felonious homicide, since both fired at the deceased simultaneously under circumstances which would lead fairly to the inference that they were shooting in concert even if they had not previously concerted a plan to rob. (Cf. People v. Walsh, 262 N. Y. 140 .)

In People v. Koerber ( 244 N. Y. 147 ) this court held that the denial of a request by an accused charged with felony murder that the court instruct the jury upon the degrees of homicide and the rule of reasonable doubt as applied to lower degrees of crime presents reversible

Upon what ground can that case be distinguished from this? In both cases a defendant charged with homicide during the commission of a felony produced evidence which raised question as to whether the accused was a guilty participant in the felony. If a person with mind too befuddled with drink to form an intent to commit a robbery may still be guilty of some degree of homicide, then surely a defendant who was coerced into apparent participation in the robbery may also be guilty of some degree of homicide. Indeed, in this case, even if the jury had believed that the defendant Stevens joined in the attempted robbery because of coercion, an intelligent jury could hardly have doubted that when Stevens shot, he did so because of excitement or desire to escape, or other motive than coercion. Surely if the District Attorney had believed that the jury might accept the testimony of coercion, he would have had the right to a charge that acquittal would not follow but that the jury might find guilt of murder in the second degree or of manslaughter.

If the trial judge properly submitted to the jury a question as to abandonment of the attempt to rob before Salisbury was shot, then all that I have said obviously applies to both defendants. Surely even if the defendants had abandoned the concerted attempt at robbery before the killing occurred, they should not escape punishment for the killing itself. In many cases we have held that where abandonment of the felony is shown, the jury may still find guilt of any other degree of homicide justified by the evidence.

I have said that in this case it may well be doubted whether there is any evidence of abandonment, and I shall assume that the trial judge erred in favor of the defendants when he charged the jury that there was such evidence. None the less, the court could, of course, not charge the jury as matter of law that the jury must find that the defendants killed the deceased while engaged in an attempted robbery, even if the evidence to prove that were conclusive and unchallenged. As we said in People v. Seiler (supra), however strong the evidence may be, “ the jury alone has power to find that fact and may refuse to find it.” Then the rule stated in People v. Schleiman (supra), in People v. Moran (supra), in People v. Walsh (supra) must be applied, as it has been applied in numerous other cases. That rule is that where a jury even unreasonably rejects evidence presented to establish a charge of felony murder, the jury may convict of any lesser degree of homicide which is established by the evidence and, in accordance with that rule, then the jury should have been instructed that if they do not find that the defendants were engaged in the commission of a felony when they killed Mr. Salisbury, the defendants might still be convicted of some degree of homicide based upon the evidence that in concert they both shot Mr. Salisbury and one of them killed him.

instructions, ‘ but one decision and that adverse to the defendant could reasonably have been reached.’ When the alternative presented was conviction of murder in

There is no basis in reason or authority for the statement in the prevailing opinion that “ the only possible ground upon which it may be argued ” that the court erred in its refusal to charge a lesser degree of homicide is that “ both defendants claim abandonment and Stevens claims coercion and Waterbury pleads insanity.” The uncontrovertible ground is that the defendants had been charged with murder in the first degree, that the statute provides that upon the trial of an indictment for murder in the first degree the prisoner may be convicted of any lesser degree of homicide where the evidence would sustain a finding of every element of the crime of which the defendant is convicted. No one can dispute here that if the jury chose, even arbitrarily, to reject the evidence of the commission of a felony, the evidence would justify a conviction of murder in the second degree or even manslaughter.

I do not understand the statement in the prevailing opinion that it is not denied that the defendants were engaged in the commission of a felony. True they confessed to that before the trial, but at the trial an issue was presented as to whether they were engaged in the commission of a felony and that issue was presented to the jury. I assume that my associates would concede that the defendants could not have been convicted of murder in the first degree unless the jury had found against the

The mandatory death penalty, upon conviction of murder in the first degree, has, I think, survived only because a jury has, under the statute, as at common law, power to find a lesser degree of guilt even in cases where no reasonable person could doubt that the defendant has committed acts which the statute defines as murder in the first degree.

Without change of the statute and without citation of any case in this jurisdiction or elsewhere, as authority, and solely because they believe that the jury could not reasonably reject the evidence that the homicide occurred in the commission of a felony, my associates now deny this power to the jury.

The judgment should be reversed and a new trial ordered.

O’Brien, Hubbs and Loughran, JJ., concur with Finch, J.; Crane, Ch. J., votes to affirm as to the defendant Waterbury, and concurs in the result of the opinion of Finch, J., as to said defendant, but dissents and votes for reversal as to the defendant Stevens; Lehman, J., dissents in opinion in which Crouch, J., concurs. Lehman and Crouch, JJ., vote to reverse and order a new trial as to both defendants.

Judgments of conviction affirmed.