People v. Luscomb

The defendant was indicted for murder in the first degree. There were three counts. The first and second charged the commission of murder in the first degree under Penal Law, section 1044, subdivision 1. The third count charged the commission of the crime under section 1044, subdivision 2. That count read as follows: “ The said defendant, Leroy Eiley Luscomb, on or about the 21st day of April, 1943, at the home of Eeuben Eck, at Corbett, Town of Colchester, Delaware County, New York, willfully and feloniously shot and killed Ella May Luscomb with a rifle, the said defendant, Leroy Eiley Lus-

In order to discuss the law it is necessary to view it against a background of fact. As to most of the facts there is no dispute tmtil we come to the occurrences immediately preceding the murder. The defendant and his wife had been married thirteen years and lived in Downsville, N. Y. They had had four children, one of whom, Janet, had died. The living children were aged respectively twelve, nine and six. Both husband and wife worked and neglected their children. The defendant had been intimate with one Onufer aged twenty-one, who apparently was the mother of a child by him. On April 17, 1943, while the defendant and the Onufer girl were at a dance hall and hotel at Long Flats, N. Y., the deceased wife entered and approached them. Words passed between the two women and the deceased left the hotel. Later the defendant and the Onufer girl left.

When the defendant arrived home on Sunday, April 18th, he found that his wife had departed taking the youngest child with her. She had returned to the home of her father one Reuben Eck, at Corbett in the town of Colchester.

To Eck’s home the defendant sent a letter by his oldest son on Monday, asking the deceased to return saying that he would be ‘ ‘ true to you from this day on. ’ ’ The deceased had previously left the defendant on two prior occasions because of his excessive indulgence in liquor. After the delivery of the letter the deceased did not return. On Tuesday morning defendant left

On Wednesday, April 21st, the defendant did not work but went fishing with his oldest son. They returned home about two o’clock in the afternoon and the defendant went to the village of Downsville, where he had some beer. At about six o ’clock he came home and had his evening meal with his children. He obtained Ms Winchester rifle, loaded it and drove with the children to a restaurant where he had a bottle of beer and the cMldren had soft drinks. He then drove to Corbett to the home of Reuben Eck. He entered through the woodshed door. The deceased was seated in the kitchen.

Ida Eck, the mother of deceased, said that at about a quarter after seven in the evening one of her grandsons came in and asked her daughter to go outside to see the defendant; that when her daughter refused, she heard her grandson say, “ Ma, you better go because he’s got a gun and he’s going to shoot you that then she heard the defendant enter the kitchen and say to her daughter in a loud voice “ Ella, I want you to get your clothes and things and Dixie [the six year old child] and go home. Do you hear? that she then heard a scuffle in the kitchen but could not hear any conversation; that when her husband went into the kitchen she followed him as far as the doorway and stood there; that the defendant had a rifle which he held with both hands; that defendant said to her husband, “ None of your funny business here. Don’t come a step further”; that the rifle was pointed at her husband; that he swung the gun around “ onto me ” and said, “ or you, either * * * damn you, I think you are a lot to fault of this ”; that he pointed the gun at her for a minute and when he swung it around she left the room; that she then heard the defendant say “ I’ll clean up the whole damn bunch of you ”; that she then went upstairs and when she reached the top of the stairs she heard a shot.

Reuben Eck testified that when he entered the kitchen he saw the defendant “ with his wife with her back up against the kitchen table, and he had hold of her clotMng like that and was ashaking her ”; that when the defendant saw him “he let go of her and grabbed up the rifle, and he said to me, ‘ None of your damn funny business, # * * don’t come a step farther ’

It was the defense of defendant that in the kitchen he asked his wife to go home with him and the children and that she refused; that he asked her more than once why she would not return but that the only answer he obtained was because .1 won’t ”; that he then said to her “You will go home ”; that at about that time her father and mother came from the sitting room and walked up to a point opposite the reservoir on the stove and stopped; that he told them he wanted his wife to go home with him and for them “ to keep their nose out of my business ’ ’; that Mrs. Eck turned and went back into the living room; that Mr. Eck mumbled something and that the defendant turned back to the table in the room, took his coat off and, laying the rifle upon the table, stepped back in front of Eck; that the defendant took his jacket off “because Eck was mad”. Continuing the defendant said: “ So I stood there facing him. He stood by the reservoir and he did not say another word so I picked the gun up and turned around and stepped up in front of him, about two feet from him and I told him that I did

The autopsy showed that the bullet which caused death “ entered the front of the neck ” and passed through a major blood vessel, the windpipe, the spinal column, spinal cord, and “ came out at the back of the neck.” The coroner testified that the muzzle of the rifle had been at least two or three feet from the body and that there were very slight marks “ probably powder burns — not very marked ”.

At law murder was committed where one unlawfully and feloniously killed another human being with malice prepense or aforethought either express or implied. (I Wharton’s Criminal Law, § 419.) Malice prepense was implied at common law, however, in cases where the homicide was not intended but occurred during the commission of a collateral felony.

Our statute now defines murder in the first degree in Penal Law, section 1044, subdvision 2, as the killing of a human being when not excusable or justifiable, committed 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. Both at common law and under the New York statute there is a transference of intent from the felony to the homicide by implication and the homicide becomes one committed with malice prepense. We have used the word “ collateral ” in connection with the commission of murder in the first degree because in certain instances the original felony is considered merged with the homicide and in such instances section 1044, subdivision 2, is not applicable. Thus an assault is merged in the homicide where the one assaulted is the one who dies. If the one assaulted is not killed but during the assault another is, that may constitute murder in the first degree. (People v. Giblin, 115 N. Y. 196 ; People v. Patini, 208 N. Y. 176 ; People v. Wagner, 245 N. Y. 143 .) That necessitates a finding that the one killed suffered his wound

The indictment charged the commission of the murder while the defendant was engaged in the commission of the crime of assault in the second degree upon Eck. The trial court properly charged that the assault upon Mrs. Eck had been terminated and that it could.not be considered in connection with the murder. As to Eck, the trial court charged the jury that, in order for defendant to be held to be engaged in assault in the second degree, it must find that the rifle was pointed at Eck in a threatening manner, with intent to injure him if he failed to comply with the defendant’s demands and that Eck must have been put in fear of bodily harm. By Penal Law, section 242, subdivisión 4, it is provided that one who willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm is guilty of assault in the second degree, a felony.

It seems to us that the trial court made a clear and correct charge on the third count of the' indictment under our previous decisions in People v. Giblin ( 115 N. Y. 196 [1889]); People v. Patini ( 208 N. Y. 176 [1913]); and People v. Wagner ( 245 N. Y. 143 [1927]). We shall quote briefly from it: “ The second theory upon which the People present this case to you is based on what is known as felony murder. This is also murder in the first degree. It is defined as the killing of a human being 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. Under this count no premeditation or deliberation or any intent, or design to effect death is necessary. That is, the commission of a felony, the commission of an independent crime during the progress of which a homicide occurs takes the place of and is a substitute for the premeditation and deliberation required by the so-called common-law type of murder. The essential elements are a felony and a killing committed during the period between its inception and its consummation. The underlying felony depended

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1 ‘ On this felony murder and speaking of the independent felony, the basic felony, that of assault, you must find that it was ■still in the process of commission at the time of the shooting. That is, if Reuben Eck and the defendant had settled their differences, if they had made up, if the defendant had abandoned any attempt to assault Eck before the commission of this shooting, before the shooting occurred, then you must find that the felony had terminated and consequently it may not be the basis for a felony murder. If you find from the evidence that Luscomb did commit an assault upon Mr. Eck and if you further find that this slaying of Ella May Luscomb took place while the assault was in the process of commission, you may then find the defendant guilty of murder in the first degree regardless of whether or not the defendant had any intention or design to kill his wife and even though you might find such killing to have been accidental.” (Emphasis supplied.)

Again the court charged “ under this count [felony] no premeditation or deliberation or anj intent or design to effect death is necessary. That is, the commission of a felony, the commission of an independent crime during the progress of which a homicide occurs takes the place of and is a substitute for the premeditation and deliberation required by the so-called common-law type of murder. The essential elements are a felony and the killing committed during the period between its inception and its consummation.”

Finally, can it he said that this was such an independent felony as is contemplated by the statute? It seems to us that we so held in the Giblin, Patini and Wagner cases cited (supra) and that they control here.

In the Giblin case, the defendant tendered a bill in payment for a purchase and when one Goelz asserted that it was a counterfeit he drew his pistol upon Goelz demanding with a threat, change of it. During the scufi&e which ensued and after several shots had been fired, two of which had struck Goelz, the deceased came into the store and ran to her husband’s assistance. She seized hold of defendant from behind and endeavored to rescue her husband from him. “ Holding his hand behind him, the defendant fired at her and the bullet entered her abdomen, inflicting the wound from which she died on the day following.” (p. 198.)

I'n the Wagner case, one Lulu Saddlemire rented rooms in a three-story house. The defendant rented a room and two days later the suspicions of Miss Saddlemire were aroused by the

In People v. Moran (supra) we pointed out the differences between that case and the Wagner case. Thus we said (p. 104): “ We are told that Byrns grappled with the defendant to save a brother officer from the threat of fresh attack, or that so a jury might determine. Reference is then made to People v. Wagner (supra) as authority for a holding that a struggle thus begun is one connected with another felony so that intent is unimportant. In all this, there is a futile attempt to split into

And again on page 105: “ Wagner was engaged in an assault upon a woman when Basto, another occupant of the same house, came to the woman’s rescue, and in the ensuing fight was killed. We held that the trial judge did not err in permitting the jury to say that the homicide was by one engaged in a separate or independent felony, the assault upon the woman. The other grades of homicide were charged. The jury were not told that the evidence was susceptible of one interpretation and no other. The case was put to them in all its phases, with instructions appropriate to each. There is little need to elaborate distinctions. They appear upon the surface. Basto, a stranger to the fight, plunged into it while it was yet in progress, to stay the commission of a felony upon the person of another. * * (Emphasis supplied.)

The judgment of conviction should be affirmed.

(dissenting): On the night of April 21, 1943, Ella May Luscomb was shot and killed at the home of her father. The fatal shot was discharged from a rifle then held by the defendant. The defendant was charged with murder in the first degree. The indictment contains three counts. In the first two counts the indictment charged that the killing was committed from a deliberate and premeditated design to effect death. In the third count the indictment charges that the defendant “ willfully and feloniously shot and killed Ella May Luscomb * ⅝ then and there being engaged in the commission of the crime of Assault in the second degree upon one Reuben Eck, one Ida Eck and the said Ella May Luscomb

After the defendant was found guilty upon that count and sentence of death was imposed, the defendant’s attorney moved to set aside the verdict upon affidavits of all the jurors to the effect that “ it was the opinion and idea of the jury that the verdict as rendered would carry to the defendant life imprisonment or such reduction of the sentence as the court might see fit to impose.” We are agreed that the motion was properly denied. The jurors cannot “ properly be permitted to declare, with a view to affect their verdict, an intent different from that actually expressed by the verdict as rendered in open court.” (Dalrymple v. Williams, 63 N. Y. 361 , 363.) Argument based on such affidavits may be addressed to the executive. We may review only the judgment which is not affected by them. The only question which we may consider upon this appeal is whether the finding of the jury that the defendant killed his wife in the commission of an assault upon her father Eeuben Eck is in accordance with the law and the weight of the evidence.

The relevant facts established by the evidence produced by the People are stated in the opinion of Judge CoNway. The defendant was an unfaithful husband, an irresponsible father who habitually drank to excess. Because of his bad habits, his wife left him and returned to her father’s home. He sent her a note begging her to come back. She refused. Then the defendant went to the father’s home. He had drunk many bottles of beer in the afternoon and evening of that day. He carried a rifle. In the kitchen of her father’s house he commanded her to return home. There was a “ scuffle ” and her parents hearing the noise went into the kitchen. There is evidence which the jury could accept, though denied by the defendant, that the defendant was “ shaking ” his wife and that as her parents came into the kitchen he released his wife and, pointing his

Perhaps the jury could find that even though the defendant put down his rifle and shook hands with Eck in friendly manner, yet that he did not withdraw his threats and that Eck still remained in fear that the defendant would carry out his threats if he interfered. It is clear, howuver, that the defendant was no longer pointing a gun at Eck and temporarily at least the assault against Eck had ceased. The question then is whether

"We are told that even though the felonious assault on Eck was for the moment interrupted it had not ceased and that the court so held under analogous circumstances in People v. Giblin (supra); People v. Patini (supra); People v. Wagner (supra). In those cases the deceased attempted to come to the assistance of another who was at that time being assaulted and received a death wound in the attempt. In People v. Giblin the husband of the deceased was resisting an assault when the deceased came to his aid. In People v. Patini the defendant was assaulting Giovanni Yasta a brother of the deceased when the deceased Guiseppi came to his brother’s aid. In its opinion in People v. Patini-1his court explained why in People v. Giblin it sustained a judgment convicting the defendant of murder in the first degree in the commission of a felony saying: “ The evidence showed that the homicide was committed while the defendant was engaged in the commission of a felonious assault upon the husband of the deceased. A dispute had arisen between the husband and the defendant over the' genuineness of a five-dollar bill; in the course of which the defendant drew his pistol upon the former. The deceased came into the store and, rushing to her husband’s assistance, seized hold of the defendant from behind. In that position, he fired upon, and killed, her. We sustained the conviction of murder in the first degree, upon the theory that the deceased received her death wound in the attempt to a,id her husband, upon whom the defendant toas committing an unwarrantable assault.” (p. 181.) (Italics through this opinion are new.) It thus appears that in People v. Giblin, at the time the defendant made the fatal assault on the deceased, his assault on her husband had not ceased or been interrupted and the violence which resulted in the death of the deceased was exercised in the furtherance of the original assault. In People v. Patini the circumstances were exactly similar except that there it might perhaps be said that the original assault was temporarily interrupted when the defendant turned his gun away from one brother and shot the brother coming to the rescue. The court, however, pointed out that even if the assault was “ interrupted ” it had not ceased, saying: “ When, because of the threatened interference of the deceased, the defendant turned his gun away from

Nor can support for the decision be found in People v. Wagner (supra). Again it appeared there that the deceased, Peter Basto, came to the rescue of Lulu Saddlemire while the defendant was striking her upon the head. ‘ ‘ The defendant then had his hand upon the throat of Miss Saddlemire. He released his hold only when Peter Basto struck him a blow. At that moment the defendant began the assaulti upon Peter Basto which ended in the latter’s death. Thus the fatal assault began at a moment when the assault u,pon Lulu Saddlemire was in progress.” (p. 149.) In the case we are considering now it should be noted again that the defendant on the contrary had turned his gun away from Reuben Eck and Eck was in no present danger from the defendant and subject to no threat unless he thereafter should come to the aid of his daughter who was being assaulted. In my opinion a finding that the assault on Eck, though interrupted, had not ceased is without support in the evidence.

Even if, however, it could be said that the assault on Eck was merely interrupted and had not ceased or even if it could be said that it was in progress when the deceased was shot, because the fear inspired by the assault continued, a finding that the fatal assault on the deceased was committed in the commission of the assault on Eck would not be in accord either with reason or authority. It is not sufficient that, the killing occurred while another felony is in progress. It must be perpetrated while the defendant is “ engaged in the commission of * ⅜ * a felony. ’ ’ The killing must occur in the commission of the felony. In other words the fatal assult must be a part of the underlying felony. Thus in Buel v. The People (supra, p. 497) we said it is sufficient “ if death ensued in consequence of that felony.” The matter is considered at greater length in People v. Muter {supra, p. 243) where the court said: “ 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 unin-

That rule has been applied by this court in People v. Moran ( 246 N. Y. 100 ) where it was claimed that an assault constituted the underlying felony. The evidence there showed that the defendant simultaneously assaulted two police officers and killed both. The fatal assault on each occurred when the assault on the other was in progress, but we held that the killing of the police officer for which Moran was on trial did not occur in the commission of an assault on the other unless it appeared that the deceased officer was killed while “ intent upon rescue ” of his fellow officer.

In the instant case the evidence shows indisputably that the defendant went to the home of Reuben Eck with the purpose of inducing or compelling his wife to return to his home. He may, perhaps, have intended to assault her if she refused. The

The cited cases show that such an independent nefarious intent is an essential element of a “ felony murder ” and the language in the opinion of this court in People v. Moran which has been italicised by Judge CoNway shows that the court reversed the. conviction of a confessed and defiant murderer because there was no proof or finding of such intent. The judgment of conviction should be reversed and a new trial ordered.

Lewis, DesmoNd and Thacher, JJ., concur with CoNway, J.; LehmaN, Ch. J., dissents in opinion in wMeh Loughrah and JJ., concur.

Judgment of conviction affirmed.