People v. Flanigan

The indictment contains but one count, which, in the common-law form, alleges that the defendant on the 29th of October, 1900, at the borough of Manhattan in the county of Hew York, “ willfully, feloniously and of his malice aforethought, did make an assault ” upon one Hugh McGovern with an iron bar, and did therewith inflict a mortal wound upon the said McGovern, of which he died on the same day.

Hpon the trial it appeared that on the lYth of October, 1900, the defendant was committed by a magistrate of the city of Hew York to .the custody of the warden, and keeper of the city prison upon a charge of burglary. Although confined at first in a cell by himself, owing to- the crowded condition of the prison he was soon transferred to the cell of another colored man called Emerson, alias Johnson, who had been committed upon a similar charge. The defendant w-as a friend of Emerson, and, as one witness testified, had asked to be put in his cell. On the afternoon of Saturday, October 28th, 1900, twoi steel saws, concealed in a pie, came into the possession of one of these prisoners while they were thus confined together, by means of which two- bars of the door of their cell were so nearly severed at either end as to be easily removed, and during the next night, acting in concert, they escaped from the prison. While they were engaged in the effort to escape Hugh McGovern, a. night keeper in the p-rison, was killed by one or both of these men. The defendant fle-d to the city of Pittsburg, where he was arrested in September, 1901, but the rope made out of bedclothing, which Emerson used in order to- reach the ground from a. high window', broke under his weight and he was instantly killed.

Another prisoner named Mese all, who- slept in an open cell on the tier above the defendant, testified that he heard somebody “ hollering very loud, like being in great agony,” and rushing in that direction looked down over a railing on the tier beneath, where he saw the defendant and Emerson both strike the witness Wilson. Wilson, fell and Mescall heard Emerson say to the defendant, “ Stop-! sto-p! that is enough.” They struck Wilson “ with something with a- rag around it.” The witness was frightened and ran away.

Early the next morning MeGo-vem was found dead in the hall where Wilson swore he saw him attacked by Emerson and the defendant, with four distinct scalp wounds, two on the top of the head, and two- on the back superior curve line. These wounds “ were made by blows and not by a fall.” The cause of death was “ fracture of the skull and cerebral hem

Wilson was found near McGovern, tied hand and foot in the same way, with a rope made out of materials obtained from the same source. He' was senseless, and his head, cut and bleeding, was muffled in a blanket.

An iron bar, sawed from, the door of the cell occupied by Emerson and the defendant, was lying near the body of' McGovern, wrapped in a piece of an old undershirt, which was saturated with blood. Another iron bar was found across an outside window, with a rope, made from parts of the two beds, attached to it and hanging down toward the ground. One of the bars of this window had been sawed and bent until an opening was made large enough for a man to get through. Beneath the end of the rope, which was about 25 feet from the ground, on a pile of iron outside of the prison wall and near to it, Emerson was found, dead. McGovern’s watch and money, the keys to the cells which he ordinarily carried and a broken saw were found in Emerson’s pocket.

The defendant testified in substance as follows:' “ This escape was made on Sunday night.” The saws were sent in a large pie to Emerson, who showed them to1 the defendant, but would not let him take them. Emerson, began to saw the bars shortly after dark Saturday night, and finished about eleven o’clock Sunday night. He then made a rope out. of the bed and bed clothing and left it lying in the cell. After the keeper made his rounds at about midnight, Emerson broke off the bars from the cell door, went out in the hall and began to

On his cross-examination he testified that Emerson and he had talked about the escape “ somewhere round about ten days,” but he first made up' his mind to' escape in the early morning of October 29th. While before that he was. opposed to making an escape and knew that Emerson intended to get out, he did not inform the keepers. He did not assist Emerson in making the rope, but did not clearly remember what he was doing himself while the sawing and other preparations were being made. At one time he said that the last'he saw clothes, and, when Emerson jumped down’ from the window with them. He did not assist Emerson in escaping, nor,had he ever asked to- be transferred to' Emerson’s cell. When the door clicked' Emerson, stopped to listen, with the two bars in

Shortly afterward, as the defendant testified, the two men went to the window; Emerson got out and the defendant waited long enough for him to get to the bottom, when he discovered that the rope had broken. In order to prepare a new rope, he walked by the bodies of McGovern and Wilson, but didn’t see that their heads were covered nor that- they were tied.

Two other witnesses were called by the defense, but they testified to nothing relating directly to the merits. The Peo>ple, in rebuttal, gave evidence tending to' show that the pie, in which the saws are supposed to have been concealed, was brought to the prison by a colored girl for the defendant. One of the keepers cut the pie into four pieces, but did not discover the saws'.

During the trial the order of commitment, consigning the defendant to the city prison, was received in evidence without objection and marked “ Exhibit D.” After the case had been settled and printed, it was discovered that this exhibit did not appear in the return'made tO' the Court of Appeals, because it had been lost and the clerk could not annex it to the return as a part of the case as settled. Thereupon the district-attorney made a motion before the trial judge, upon notice to the defendant, to amend the record by annexing thereto' a copy of “ Exhibit D,” and for directions to' the clerk to certify the same to the Court of Appeals as part of the return. The motion w'a.s founded upon affidavits showing that the exhibit had been lost and after diligent search in the proper places could not be found. A sworn copy was presented, together with affidavits, tending to show that the defendant was brought before one of the city magistrates on the 13th of October, 1900, upon the charge that on the 11th- of October, 1900, at the city and

The motion does not appear to have been opposed, and it resulted in an order amending the return by setting forth a copy of the commitment and directing the- clerk to' prepare an amended and supplemental return and to certify and file it with the clerk of the Court of Appeals. The defendant appealed from said order to' this court and now insists that the trial judge had no- power to1 make the amendment and that he “ erred in receiving upon mere affidavits a manufactured exhibit.”

In Peter v. Swan ( 119 N. Y. 662 ) we held that “ although a copy of the record has been filed with the clerk, pursuant to the notice of appeal, yet, the court below so' far retains jurisdiction of the case as to enable it .to make such amendments to the record as it shall deem proper and to order that the amendment shall be duly certified tc us and filed with our clerk.” We further declared that “ when thus filed, we regard it as part of the original return and proceed to hear

As the case now before us did not pass through the Appel-" late Division, the limitation suggested- does not apply, and we regard the case cited as analogous and controlling as to the power of the trial judge to- grant the order.

The lost exhibit was of the utmost importance, for a prisoner confined upon a commitment for a felony is guilty of a felony if by force or fraud he escapes from prison, whereas, if the commitment is for a misdemeanor, a prisoner who escapes is guilty of a misdemeanor only. (Penal Code, sec. 85.)

The Code further provides that the killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed either from a deliberate or premeditated design to effect the death of the person killed, or 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. (Sec.: 183.)

- The case was sent to ‘the jury with instructions permitting them to convict the defendant of murder in the first degree, committed either with deliberation and premeditation, or while engaged in the commission of a felony, and upon the latter theory, which the jury may have adopted, the exhibit was an essential part of the case made by the People upon the trial. The record, before it was amended, showed that the commitment had been received without objection and marked as an. exhibit. It was, therefore, a paper which belonged to the record and should have been certified and printed. "It was the duty of counsel in preparing a case, and of the trial judge in settling it,' to see that so much of the evidence and proceed

As the loss of the exhibit was duly accounted for, a copy thereof, when conclusively established, was properly made a part of the return. Even if the commitment had been lost before the trial, its contents could have been proved by seo ondary evidence at the trial. We think the practice adopted below was regular and proper, and that it would be strange, indeed, if the course of justice could be arrested simply because a writing, duly received at the trial and considered by the jury, could not be found, although, its contents were established by several witnesses without contradiction. There is no doubt as to the substantial accuracy of the copy which has been made a part of the return. The trial judge recited in his order that he had acted in making it not only upon the affidavits, which were full and satisfactory, but also upon his own recollection, as he lawfully might We think that the order appealed from should be affirmed.

When the case is considered upon its merits, it is evident from the facts already stated that we should not disturb the verdict, in the absence of exceptions raising error, upon the ground that it was against the weight of evidence or against law, or because justice requires a new trial. (Code Cr. Pro., sec. 528.) If the defendant, as the evidence strongly tended to show, was engaged with Emerson in the act of escaping from prison by force, or in an attempt to so escape, after lawful commitment for a felony, and the two men, acting in concert, whether either intended to take life or not, with a common purpose struck the keeper at the same time, and as the result of the blows thus inflicted he was killed, each was guilty of murder in the first degree. (People v. Sullivan, 173 N. Y.

Even if the life is taken while the perpetrator is' committing a felony, still the other branch of the definition of murder in the first degree may apply, for the intent to kill may exist, and it may be carried into effect with deliberation. (People v. Sullivan, supra.) If the defendant intended to kill, and, acting with deliberation., united with' his confederate in striking the blows at the same time for that purpose, he was guilty of murder in the first degree, even if the mortal blow was struck by Emerson, fo-r when the assault is joint and with a common design, each actor is liable for the violence inflicted by both.

Several exceptions relating to evidence were taken by the defendant’s counsel during the course of the trial, but the only one argued before us is that the court erred in receiving the iron bar and the rope, which was pulled in from the window on the morning of the homicide, although they were no-t in the precise condition as when first found. It was shown that the rope had been torn a little by handling during the interval between the homicide and the trial, but.that it was the same rope, “ the same material,” in substantially the same condition as when discovered on. the morning of October 29th, Í900-. The cloth around the iron bar was “wound tighter” when it was found than it was when the b-ar was offered in evidence. This also was explained by the handling it had

The only exception taken to the body of "the charge was not argued and is of no1- importance; The defendant’s counsel, however, claims that although the questions are raised by no exception, a new trial should be granted on account of the charge under the power intrusted to us by section 528 of the Code of Criminal Procedure. The portions of the charge, now objected to for the first time, when read with the context, are as follows: “ You are the sole and exclusive judges of the facts. What are the facts in this case? You are to determine them on your own judgment, and it will be my purpose and my endeavor to do nothing and say nothing which will in any way influence you in that direction. I shall confine myself to the law in the case. I am the supreme judge of the law. And the law, as I lay it down to you, you are to follow implicitly. But the facts you are to determine exclusively without any aid from me. In this case there is my room for prejudice—there should be nonei—against the defendant, on account of his color, or of any other circumstance. The purpose of our government, and of our courts, has been illustrated but yesterday, in one of the most important criminal cases which has ever been tried in this land. In a case where the Chief Executive of our nation of eighty millions of people was killed deliberately and with premeditation, the defendant has all the forms and safeguards of the law vouchsafed to him and thrown around him. Able lawyers were assigned to defend him, both of them, I believe, ex-judges of a high court of this State; every proper safeguard which could be thrown around a human being was vouchsafed to him. His plea of guilty;

After fully defining the various degrees of murder and manslaughter and carefully pointing out the distinction between them, the court continued: “ The facts which the People claim to have established by the evidence in this case— and it will be for you gentlemen to determine whether the evidence sustains their claim or not—are as follows: First', the People claim that Hugh McGovern, referred to in the indictment, is dead. That claim., they argue, is established by the uncontroverted evidence in this case. I understand it to be conceded that Hugh McGovern, referred to in the indictment, is dead. The next fact which they claim is established by the evidence is this: That he died in the prison situated in 53rd street in the, county of Hew York on the 29th day of October, 1900, from injuries inflicted by the defendant and one Emerson, or, at least, by one of them. The third fact which they claim is-established by the evidence is that, at the time of inflicting the said injuries, both the defendant and Emerson were prisoners in the said prison, under a commitment charging them with the commission- of a felony. I understand that this fact is a conceded fact, that they were both prisoners in this prison in question, in cell Ho. 6, under a commitment charging them with the commission of a felony1. I draw your attention to this conceded fact as being applicable to that section of the. statute which makes it murder in- the

Afterward, in summing up part of these claims, the court spoke of them as conceded, as follows: “ It is a conceded fact that they were in that prison charged with committing a felony. It is conceded that McGovern came to his death from injuries inflicted by one or both of these men. It is conceded that at the time that these injuries were inflicted they were trying to escape, and finally did escape from that prison.”

The charge closed with' these words: “You are to deter? mine what the facts are in this case, and, having determined what the facts are, without paying any attention, so far as the questions of fact are concerned, to anything which I may have said, take the law as I have defined it to you and if you find that the facts show that this defendant has made himself liable to the law, and is guilty of murder in the first degree, so find by your verdict. If, on the contrary, you find that, taking into consideration all the facts as you find them, he is guiltless, has committed no crime whatever, say so. by your verdict.”

The first criticism made in regard to the charge is that the portion relating to the trial of the murderer of President McKinley “ could not operate otherwise than injuriously to the defendant’s case.” We think the charge is not subject to this imputation. The object of the court was to impress upon the minds of the jury that a man. charged with crime is

The second criticism relating to the charge is that the court stated certain facts as conceded, whereas the record does not show that all of them were conceded, although it does show that they Were not disputed, and that they were duly established by convincing evidence. The attention of the trial judge was not called to the mistake which it is claimed he made. The assertion was not challenged and no opportunity was. given to correct it. Whether the defendant’s counsel in summing up had made any concession does not appear. Ho claim was made during the trial, and none is made now, that the facts referred to as conceded were not conclusively established. They were proved by persuasive and uncontradicted evidence. They were not denied by the defendant when upon the stand, and indeed the most, if not all of them, were recognized as true by his testimony. The trial judge told the jury that they were the exclusive judges of the facts, and that they were to determine what the facts were in the case without paying any attention

The defendant’s counsel asked the court to charge, in substance, that the jury could not convict of murder in the first degree unless they found deliberation and premeditation, because homicide committed while perpetrating a felony was not specifically pleaded in the indictment. We have recently held otherwise and the law was well settled before. “ Under an indictment for murder in the first degree the prosecution may prove facts to bring the case within any of the provisions of the statute defining the crime.” (People v. Sullivan, 173 N. Y. 122 , 137, 141; People v. Giblin, 115 N. Y. 196 .)

We have endeavored with patience and fairness to review all the questions involved in this case1, even, if not raised by exceptions or argued by counsel, but We find no just ground upon which a new trial can be granted. The order amending the return and the judgment of conviction should be affirmed.

Parker, Ch. J., Gray, 0?Briew, Bartlett, Haight and Martin, JJ., concur.

Order and judgment affirmed.