People v. Darragh

The appellant was a chauffeur. His employer had purchased a new sixty-horse-power car about the 1st of March, 1909. This car had made sixty-five miles an hour and the appellant had, according to his own testimony, driven it at the rate of sixty miles an hour the day before the occurrence here under consideration.

In the early evening of Saturday, March twenty-seventh, the appellant took the car, which at that time was equipped with only two racing seats, the body having been taken off and left at the garage, and started out to test it, to try out the car on some hill, as he wanted to run it up a grade if he could. He took a young man of his acquaintance with him and at about seven-forty-five in the evening started up Morningside drive from One Hundred and Tenth street. Morningside drive going

The appellant, although he knew he had hit the boy and thought he had killed him, did not stop to investigate, but fled at full speed and, by a devious route, returned to his garage, where, finding the glass in one lamp smashed and the iron mudguard on the left side of the front wheel bent, he repaired these damages, reported to his employer the next day that the damage to the mudguard had been caused by another machine backing into it at the garage, fled the city on Monday and was subsequently arrested in Texas and brought back to this State.

The jury could have found that the speed of the car at the time it struck the boy was from thirty-five to forty miles an hour. The appellant himself testified that his speed on the up grade which ended between One Hundred and Sixteenth and One Hundred and Seventeenth streets was from twenty-four to twenty-five miles an hour. He also testified that as he crossed over the north crossing of One Hundred and Seventeenth street he saw the boys pláying ahead of him at One Hundred and Eighteenth street. His claim was that he had slowed down to ten or twelve miles at One Hundred and Eighteenth street; that if the boy had stood still he would have cleared

The following indictment was found against him: “ The Grand Jury of the County of ISTew York by this indictment accuse William Darragh of the crime of murder in the first de-. grec committed as follows: The said William Darragh, late of the Borough of Manhattan, of the City of ISTew York, in the County of ISTew York, aforesaid, on the twenty-senventh day of March, in the year of Our Lord one thousand, nine hundred and nine, at the borough and county aforesaid, with force and arms in and upon one Ingovaard Trimble, in the peace of the said People, then and there being, wilfully, feloniously and of his malice aforethought, did make an assault, and a certain vehicle known as an automobile, then and there being operated, governed and controlled by him, the said William Darragh, to, at, against and upon the said Ingovaard Trimble, then and there wilfully, feloniously and of his malice aforethought did force and drive, and him, the said Ingovaard Trimble, with the said vehicle so forced and driven as aforesaid, then and there wilfully, feloniously and of his malice aforethought, did strike, knock down and run over, thereby giving unto him, the said Ingovaard Trimble, then and there by the means aforesaid, in and upon the head and body of him, the said Ingovaard Trimble, divers mortal wounds, bruises, contusions and fractures, of which said mortal wounds, bruises, contusions and fractures, he,

The present statute is section 1044 of the Penal Law, which provides: “ The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed: * * * 2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual.” And it was this portion of the statute to which the attention of the jury was directed by the charge of the court in submitting to them the question whether the appellant was guilty of murder in the first degree.

The proper interpretation of this section was laid down in Darry v. People ( 10 N. Y. 120 ). Seldeb, J., pointed out that “ the substitution of new and original phraseology in our statute defining the crime of murder (2 B. S. 651, § 5) * was the result of an effort to clear the subject of the obscurity which grew out of the inaccurate use of some of the terms of the common law,” with especial reference to express and implied malice, but that the statute was, nevertheless, based upon the common law, and cites from 1 East’s Pleas of the Grown (223, § 10) the 3d subdivision of the general definition of homicide:

The facts alleged in the indictment and proven in the case at bar, bring it within the class of cases pointed out, not only by Selben, J., but those cited from East, as sustaining the charge of murder under the subdivision of the section quoted, and particularly the illustration of the attempt to break a vicious horse in a crowded street. For purposes of pleasure and business, the motor car has to a very considerable extent supplanted the horse. The law in its growth adapts settled principles to changing circumstances. It is well settled that the same kind of acts, producing identical mischiefs, although perpetrated with different and more modern instruments, come within the ancient principles. Therefore, the indictment was properly laid upon the charge of murder in the first degree.

Section 30 of the Penal Law provides that “ whenever a crime is distinguished into degrees, the jury, if they convict the prisoner, must find the degree of the crime of which he is guilty.” The learned court, in its charge, defined the different degrees of murder and of manslaughter fully, and submitted the question of the degree of guilt to the jury in case they found him guilty at all. The jury returned a verdict of manslaughter in the first degree and the appellant now asks that the judgment be reversed, because if guilty at all he was only guilty of manslaughter in the second degree; that under the facts proven he could not properly be convicted of manslaughter in the first degree. There is not an exception in the case which brings up

There' was no motion in the case at bar at the close of the People’s case or at the close of the whole case to take the case from the jury or to discharge the prisoner, and there are no exceptions to the charge.

Judge Vann proceeded: “ There was a motion for a new trial but the order denying it brings up nothing for us to review. There was a motion for an arrest of judgment, but that brought up only the jurisdiction of the court over the subject of the indictment, which is not disputed, and the question whether the facts stated constitute a crime, meaning, of course, the facts stated in the indictment. (People v. Meakim, 133 N. Y. 214 , 219; Code Cr. Pro. §§ 323, 331, 467.) It is not claimed that the facts stated in the indictment do not constitute a crime, although it is strenuously insisted, as the Appellate Division held, that they do not constitute the crime for which the defendant was convicted. However, when the court charged the jury that they could convict him of an assault in the first degree, notwithstanding the indictment was for manslaughter in the first degree, the defendant made no objection and took no exception. He acquiesced in that instruction and was apparently satisfied with it. * * * We have no power to pass upon the question of law which led the Appellate Division to reverse, because it was not raised by an exception. That learned court was in the same situation with reference to that question, although it had ample power with reference to other questions not open to us. We are thus compelled to reverse their determination because they had no power to make it.” (Cited in People v. Washer, 196 N. Y. 104 ; People v. Thomp

This court has the right to review the evidence and this we have done and find the verdict of guilty sustained thereby, and we do not find that it is against the law or that justice requires a new trial. Section 1050 of the Penal Law provides that “ Such homicide [that is unless it is excusable or justifiable] is manslaughter in the first degree when committed without a design to effect death: 1. By a person engaged in committing or attempting to commit a misdemeanor affecting the person or property either of the person killed or of another.”

At the time of the transactions in question the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30) was in force. By section 291 thereof it was provided that no person should operate a motor vehicle on any public highway where the territory contiguous thereto is closely built up, at a greater rate than one mile in six minutes; or elsewhere in a city or village at a greater rate than one mile in four minutes; and by section 307 it was provided that “ The violation of any of the provisions of section * * * two hundred and ninety-one * * * of this article * * * shall be deemed a misdemeanor, punishable by a fine not exceeding one hundred dollars for the first offense, and punishable by a fine of not less than fifty dollars nor more than one hundred dollars, or imprisonment not exceeding thirty days, or both, for a second offense, and punishable by a fine of not less than one hundred dollars nor more than two hundred and fifty dollars and imprisonment not exceeding thirty days for a third or subsequent offense.” So that at the utmost the lawful speed upon the Morningside drive was fifteen miles an hour, a violation of the restriction was declared a misdemeanor, and the appellant testified that he knew that was the speed limit, and also that he had been twice convicted and fined for speeding.

The statutes also provide: Section 43 of the Penal Law: “ A

So that if the question were properly before us it would be clear, we think, that the conviction under section 1050 of the Penal Law was justified because the jury by their verdict have

The judgment appealed from should be affirmed.

Ingraham, P. J., Laughlin and Scott, JJ., concurred; McLaughlin, J., dissented.

(dissenting) :

The defendant was indicted for murder in the first degree. The indictment was in the common-law form, and under it, undoubtedly, the prosecution could prove facts to bring the case within any of the provisions defining murder in the first degree. (People v. Sullivan, 173 N. Y. 122 ; People v. Gib lin, 115 id. 196 .) He was convicted of manslaughter in the first degree, and it is claimed he was guilty of that crime because, at the time of the homicide, the defendant was engaged in committing a misdemeanor affecting the person or property of the person killed. The statute provides that homicide is manslaughter in the first degree when committed without a design to effect death by a person engaged in committing or

But it is urged that the question of whether the evidence justified a verdict of manslaughter in the first degree cannot be considered upon this appeal, because there is no exception in the record raising it. If my conclusion be correct that the evidence does not establish that the defendant was guilty of manslaughter in the first degree, then the verdict of the jury is without evidence to sustain it, and it does not need an exception to enable this court to consider the question. Section 527 of the Code of Criminal Procedure expressly provides that where an appeal is taken to the Appellate Division it “ may order a new trial, if it be satisfied that the verdict against the prisoner was against the weight of. evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.”

For these reasons I think the judgment of conviction appealed from should be reversed and a new trial ordered.

Judgment affirmed.