People v. Pekarz

On the 22d of May, 1905, the defendant was in-dieted for the crime of murder in the first degree, in that on the 24th of April, 1905, in the borough of Manhattan, county of New York, he willfully, feloniously and with malice aforethought, took the life of Sarah Eosenberg by beating her upon the head with a hammer and stabbing her in the throat with a knife. Upon his arraignment he pleaded “ not guilty ” and, as permitted by statute, added the specification “that he was insane when the offense was committed.” (Code Cr. Pro. § 335.) His trial commenced on the 19th of June, 1905, and on the 28th of the same month the jury found him guilty of murder in the first degree as charged in the indictment.

Upon the trial evidence was given tending to establish the following facts: The defendant, a native of Bohemia, came to

About the middle of March he began to live in the apartments 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. Scheider, his employer, had to take him home because he could not take care of himself. Mr. Scheider testified that this was the only time he remembered seeing him in a drunken condition prior to the 24th of April, but that he drank so much that he remonstrated with him on the subject and told him to stop. He did not drink every day and lost but three days, in March and none in April. On Monday, April 24th, he began work at the usual hour and was “ half drunk ” when he came. During the forenoon he procured four or five pints

About a week prior to the 24th of April the defendant said to Mr. Scheider that he knew where Sarah Eosenberg kept her money, and when asked where it was, replied, “ Under the stove where other people keeps wood.”

For five days after April 24th nothing was seen of Sarah Eosenberg 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 advance state

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. He found an incised and punctured wound on each side of the neck, severing the main artery on either side. He was of the opinion, although he expressed it with some doubt, that the wounds in 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 having been warned that he need not answer any questions and that whatever he said would be used against him on his trial, he freely answered all questions that were put to him. When asked what he did with the old woman in 101st street he said that he “ brained her with a hammer.” When searched at

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 symptoms 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 coroner said appeared after a debauch or severe drinking. The coroner was under the impression that he had been on debauch and was apparently recovering therefrom. Once he laughed in a pecul

The defendant was sworn as a witness in his own 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 he did not feel like working in the afternoon as he was too drunk, borrowed a hammer to fix his bed and went home for the 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 the cord and there was 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 Seheider’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 óf getting money to buy more drink. I did not tell coroner Sch'oler that I went 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. I did not go home that day with the intention of killing Mrs.

On his cross- examination he said that he did not know why he killed the old woman, but knew that he killed her. He did not want money. He 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. He 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 ten cents of it for that purpose. He remembered distinctly what he had for lunch. On reaching home he unlocked the outer door of his bedroom and entered. He went to fix the bed but saw that it was already 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 he was too much under the influence of liquor, but that he 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 back toward him when he 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. He did not know why he hit her twice and did not remember where he put the hammer. He carried her from the kitchen to

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 her on 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

The statement of the facts is our review upon the merits, for it is obvious therefrom that the evidence was ample to justify the jury in convicting the defendant of the crime charged either upon the theory of a deliberate and premeditated design to effect the death of the person killed, or upon the theory that the defendant was engaged in the commission of a felony affecting the person killed. (People v. Deacons, 109 N. Y. 374 ; People v. Sullivan, 173 N. Y. 122 , 17 N. Y. Crim. 180 .) The evidence, aside from the confession, is sufficient to sustain a verdict rendered on either theory, and, as the indictment was in the common-law form, it was supported by either kind of proof. Upon the question of insanity there was evidence to show that the defendant knew the nature and quality of the act he was doing and that he knew the act was wrong. (Penal Code, § 21.) He remembered what he did, even to the minute details, and must have been conscious of what he was doing. He knew that it was wrong, for he at once changed his bloody clothes, locked the door upon leaving, and when asked by his employer where he got the money, did not tell him. If he committed the act while in a state of voluntary intoxication, it is not deemed less criminal on that account, although the fact may be considered in determining the purpose, motive or intent. (Id. § 22; People v. Fish, 125 N. Y. 136 .) All these questions were for the jury, and we do not think that their verdict was against the weight of evidence or against law, or that justice requires a new trial. (Code Crim. Pro. § 527.)

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

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, 18 N. Y. Crim. 536 ; People v. Silverman, 181 N. Y. 253 , 241, 19 N. Y. Crim. 360 ; 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

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 act of the defendant, but simply his condition, and it was not for a lay witness to express an opinion as to mental soundness founded upon that condition. That he was intoxicated was a condition. That he was foaming from the mouth, that his eyes were bulging and that he was untidy, were simply descriptions of a condition, not a statement 'of acts done or words spoken. When the witness summarized her description she said, “ That is the way he looked.” In other words, she simply described his appearance. If the defendant had done something or said something, the witness, after describing the act or repeating the words, could have expressed the opinion whether they impressed her at the time as rational or irrational. She could not, however, pronounce his mere condition or appearance rational or irrational, for that would lay before the jury the opinion of a non-expert in relation to a disease of the mind, which is never permitted. Such evidence would be unreliable and dangerous.

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, dvdy 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

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 the 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

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 he 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 “ the other evidence is nearly balanced, but slightly preponderating against the defendant, the presumption from proof of good character is entitled to great weight and will often be sufficient to turn the scale and produce an acquittal.” (Cancemi v. People, 16 N. Y. 501 , 506; Remsen v. People, 43 N. Y. 6 .) AVhen such evidence has been presented it is the duty of the court, if properly requested, to instruct the jury to consider it and to tell them the effect that it may have. (People v. Bonier, 179 N. Y. 315 , 18 N. Y. Crim. 516 .)

AVhen, however, no evidence has been given upon the subject by the defendant, who alone can open the door, hi.s character is not in issue and he is not entitled to the instruction that the presumption that his character is good, must be 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 unsup

We find no error in the record that calls for a reversal. The defendant had a fair trial. USTo injustice was done him by any ruling of the court, nor was injustice done him by the verdict of the jury.

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.