People v. Santoro

The defendant was tried upon the indictment accusing him of the crime of manslaughter in the first degree in causing the death of Felix Wrzeszenski feloniously, “ but without a design to effect the death of said ” deceased, in an assault by means of a loaded pistol discharged at, “ but Avithout a design to effect the death of said Felix Wrzeszenski.” The eAddence proved that in an altercation betAveen the defendant and Wrzeszenski the former, after being seriously wounded by, shot the latter, Avho died about ten days afterward. Whether or not the shooting. Avas the cause of the death was in dispute at the trial. The jury rendered the verdict finding the defendant guilty of assault in the first degree and the consequent judgment (a certificate of reasonable doubt having been granted) was affirmed by'the Appellate Píausíou. We decide that the judgment of comdction was erroneous, because of errors comiected with the charge of the trial judge to the jury. The main charge stated, in statutory language, the constituents of manslaughter in the two degrees defined by the Penal Law (sections 1050, 1052). It stated, in statutory language, further, the elements of each of the three Autrious degrees of assault as defined by the Penal Law (sections 240, 242, 244), and, further: “ If, however, you find as a fact that the defendant shot deceased and that the deceased did not die by reason of these wounds, that is, if the Avounds were not. the proximate cause of death of decedent, you have the right to bring in a verdict of assault in any of the various degrees.” The jury several hours after retiring-reported that they Avere unable to agree, and after admonition

It is an essential element of the crime of manslaughter in the first degree that the assault on the deceased was “ committed without a design to effect death.” The indictment of the defendant expressly, with repetition, alleged that the assault was “without a design to effect the death” of said deceased; the statute expressly makes that element'essential to the, existence of the crime. (Penal Law, § 1050.) It is an essential element of the crime of assault in the first degree that the assault be committed “ with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another.” (Penal Law, § 240. ) The entire of the section is: “A person who, with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another: 1. Assaults another with a loaded firearm, or any other deadly ^weapon, or by any other means or force likely to produce death; or 2. Administers to' or causes to be administered to or taken by another, poison, or any other destructive or noxious thing, so as to endanger the life of such other, is guilty of assault in the first degree.” The commission of “ a felony upon the person or property of the one assaulted, or of another ” is not established by proof of an assault, with an intent to kill a human being, with a loaded firearm, of any other deadly weapon. The statute enacts that a specified assault with intent to kill is one combination of acts which constitutes the crime, and that a specified assault springing from or incidental to an intent to commit a felony upon the person or property of the one assaulted, or of another, is another combination of acts which constitutes the crime. In the first

The People invoke in support of the conviction the statute (Code of Criminal Procedure, § 444) : “ Upon an indictment for a crime consisting of,different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inierior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause-of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence. A conviction upon a charge of assault is not a bar to a subsequent prosecution for manslaughter or murder, if the person assaulted dies after the conviction, in case death results from the injury caused by the assault.’-’ It is always presumed, in regard to a statute, that no unjust or unreasonable effect was intended by the Legislature. The statute, unless the language forbids, must be given an interpretation and application consonant with the presumption. . (Matter of Meyer, 209 N. Y. 386 .) To

The act stated in the indictment and warranted and proven by the evidence did not constitute the crime of assault in the first degree; the crime of assault in the first degree, as a matter of law, is not included in or a lower degree of that of manslaughter in the first degree. We have had occasions to recognize the truth of such conclusion in our opinions. We said of an indictment alleging murder: “ Manslaughter is a killing ‘ without a design to effect death.’ The words in the statute, under which the indictment is framed, exclude the idea of manslaughter, for they describe an ‘ assault and battery by means of a deadly weapon, or by such other means or force as was likely to produce death with the intent to kill.’ ” (Pontius v. People, 82 N. Y. 339 , 345.) The converse must be equally true. The words in the statute defining manslaughter exclude the idea of assault in the first degree for they describe an assault “ without a design to effect death.” In another, case we said: “ The intent to kill is the distinguishing element of the offense (of assault with intent to kill), while .every degree of manslaughter and every description of that crime in the statute, except one, is based upon an absence of an intent to kill, and how this crime can be established by proving an assault under such circumstances, that, had the killing taken place, it would have been only one of the degrees .of manslaughter, which is based upon the absence of an intent to kill, is manifestly incongruous.” (Slatterly v. People, 58 N. Y. 354 , 357.) One crime is -not constituted by the alleged acts which constitute

In the statute under consideration (Penal Law, § 444) there is the legislative recognition of and compliance with the principles we have stated. It enacts that the defendant, under the prescribed conditions, “ may be convicted of assault in any degree constituted by said act, and warranted by the evidence.” The words, “ in any degree constituted by said act, and warranted by the evidence,” are words of limitation. “ Said act ” is that charged or complained of in the indictment. A defendant may not, under the prescribed conditions, be convicted of assault in the degree having the measure of punishment which the jury would inflict. A defendant may be convicted only of an assault constituted by or necessarily included in the specifications of the indictment and proven by the evidence. The defendant at the bar, under the erroneous refusal of the trial judge to instruct the jury, was convicted of an assault which the specifications of the indictment averred he did not

The judgment of conviction should be reversed and a new trial ordered.

The defendant was indicted for manslaughter in the first degree. Manslaughter in the first degree is homicide when not justifiable or excusable, and “ When committed without a design to effect death:

“1. * * *, or,

“ 2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon. * * (Penal Code, § 1050.)

The indictment charged that the defendant “ feloniously, wilfully, unlawfully, and wrongfully, but without a design to effect the death” of one Felix Wrzeszenski, made an assault upon him “ by means of a dangerous weapon and firearm commonly known as a pistol or revolver ” which he did “ fire off, shoot, explode and discharge ”• at, towards and against said W., inflicting serious wounds from the effects of which he died.

It appeared at the trial that the defendant fired two shots at W., both of which passed through his left lung. W. died at a hospital about ten days thereafter. The attending physician testified in substance that W. failed to obey the instructions given him and that in his judgment, if W. had obeyed the instructions so given him he would have recovered. Other testimony was received to show that W. died from the wounds but a question of fact thus arose as to whether W. died from the wounds inflicted by the defendant.

It is provided by section 444 of the Code of Criminal Procedure as follows:

“ Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree

inferior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to he the cause of death, the defendant may he convicted of assault in any degree constituted by said act, and warranted by the evidence.”

Assault in the first degree is defined by section 240 of the Penal Code as follows:

“ A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another: 1. Assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death; or * * *

“ Is guilty of assaxilt in the first degree.”

The defendant was found guilty of assault in the first degree. An appeal was taken to the Appellate Division from the judgment entered upon the verdict and the judgment was there unanimously affirmed. (People v. Santoro, 190 App. Div. 56 .)

The question whether the defendant could under the indictment be found guilty of assault in the first degree, did not arise during the trial prior to the charge of the court. At the close of the testimony for the People counsel for the defendant asked that the indictment be dismissed and the defendant discharged because the People failed to prove the defendant guilty of the crime set forth, in the indictment or of any crime. The motion was denied. Ho direct evidence was offered by the People as to the intent with which the defendant shot W. It was a fact to be inferred from, the facts proven. The defendant however, was asked by his counsel whether he intended to kill W. Counsel for the People objected because the intent with which the shooting was done is a question to be determined by the jury. The objection was overruled and the defendant answered, £l Ho, sir. I did not intend to kill him.”

The court in charging the jury read to them the provisions of the Penal Law defining assault in the first, second and third degrees, and at the close of the charge said: 11 If there is a

Counsel for the defendant .said: “ I ask your honor to charge the jury that simply because the jury have any doubt as to whether the defendant committed a greater crime would be no reason whatever for bringing in a verdict of assault unless they found that the defendant had committed the crime of assault.” The court charged as requested.

Ho stiggestion was made on behalf of the defendant that the jury could not legally find him guilty of assault in the first degree. Subsequently the jury came into court and asked to be informed as to the punishment prescribed for assault in the first degree.

The court complied with the request of the jury, whereupon counsel for the defendant said: “ I ask your honor to charge that the defendant cannot be found guilty of assault in the first degree,” but the court refused so to charge.

I think the belated claim in behalf of the defendant is nevertheless in time to raise the question as to his conviction under the indictment.

It was a rule of the common law that when an indictment charges an offense which includes within it another inferior offense or one of a lesser degree, the defendant could be convicted of the inferior offense or one of lesser degree.

In England the rule . did not permit finding a defendant guilty of a misdemeanor on a charge of a crime constituting a felony. This distinction, which was based upon certain privileges accorded a person charged with a felony, was not applicable in this state. The rule of the common law that prevailed in this state was to preven the prosecution from failing when the alleged facts and circumstances charged in the indictment were proved, if such proofs made- out a crime though of an

Section 444 of the Code of Criminal Procedure,' from which we have quoted, is more comprehensive than the common-laiv rule or the rule as provided by said section 445. It is the apparent intention and purpose of the statute to permit the conviction of a person indicted for the crime really committed by the overt acts set forth in the indictment. While intention is of material, and in many cases of commanding importance in determining whether a person is guilty of a crime and of the degree thereof, there must in at least all crimes of violence, be overt acts upon which to base an indictment and conviction.

It is expressly provided in said section 444 of the Code of Criminal Procedure that if upon a trial for murder or manslaughter, it is not proven that the acts complained of mere the cause of death “ the defendant may be convicted of an assault in any degree constituted by said act, and warranted by the evidence.1'’

A person on trial for a crime is apprised by the indictment and the statutes of the fact that he is not only charged with the overt acts mentioned in the indictment and with the crime specifically mentioned therein, but also with all other inferior degrees thereof and of an attempt to commit the crime, and that if the indictment is for murder or manslaughter and the act complained of is not proven to be the cause of death he is thereby charged with and may be convicted of assault in any degree constituted by the act charged in the indictment and warranted by the evidence.

The indictment does not include a count of a higher nature.

If the defendant is not indicted for the higher crime at the next term of the court, the court must again proceed to try the defendant on the original indictment. (Code of Criminal Procedure, § 401.)

Section 444 of the Code of Criminal Procedure does not coniine the right to convict the defendant under indictment of manslaughter in the first degree to any inferior crime consistent with the intent and facts charged in the indictment for manslaughter in the first degree but of any degree constituted by the acts charged in the indictment and 1warranted by the evidence.

The plain language of section 444 includes assault in the first degree. ■ The language of the section is too plain for interpretation. There is no constitutional provision in this state which prevented the Legislature from enacting section 444 of the Code of Criminal Procedure.

The principal authorities referred to by the defendant and otherwise coming to our attention, among which is State v. Thomas ( 65 N. J. L. 598 ), where different conclusions have been reached, are cases where the common-law rule was considered unaffected by express statutory provisions constitutionally enacted.

The decision in People v. Huson ( 114 App. Div. 693 , 20 N. Y. Crim. 36 ) was reversed ( 187 N. Y. 97 ). The question under consideration was not considered or passed upon by this court in the Huson case. 1 do not approve the conclusion reached by the Appellate Division in that case.

Section 444 of the Code of Criminal Procedure was thereupon amended by the Legislature so as to read as hereinbefore quoted. It has been suggested that the amendment was passed because of the statement of this court in the McDonald case.

In Keefe v. People ( 40 N. Y. 348 , 355) the statements of this court in the opinion are, particularly in view of the present provisions of the Code of Criminal Procedure, applicable if not controlling in this case. In that case the plaintiff in error was indicted for murder in the first degree. The indictment contained a single count for murder drawn as required by the common law. He was convicted of murder in the second degree which was then (1865) defined to be the killing of a human being without a design to effect death by a person engaged in the commission of a felony other than that of arson in the first degree. The conviction was sustained. This court, referring to the statute then existing which provides that upon an indictment for an offense consisting of different degrees the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused guilty of any degree of such offense inferior to that charged in the indictment or of an attempt to commit such an offense, say: “ I think the true construction of the statute is, that when the act for which the accused is indicted is the same act for which he is convicted,

It was not error for the court to refuse to charge that the defendant could not be found guilty of assault in the first degree.

I do not think that the “ felony upon the person or property of the one assaulted ” mentioned in section 240 of the Penal Law included the attempt to commit a homicide. The felony therein intended is one independent, of the assault, with intent to kill, such as mayhem, rape or other crime not- necessarily included in the assault.

This court in Foster v. People ( 50 N. Y. 598 , 602), in which Foster had been indicted for murder in the first degree and in considering murder in the second degree as then defined by statute, say: “ It is claimed on the part of the people that the words ‘ engaged in the commission of any felony,’ in the statute, do not include cases in which the killing resulted from intentional violence to the person killed, and where, although the intent was to commit a felonious assault there was no intention to kill; or, in other words, where the felony intended, although not the felony of homicide, was the very act of personal violence which caused the death, that this is not a felony within the meaning of the statute.”

In that case Foster was insisting- that striking the deceased on the head with a car hook, which was the overt act shown therein, might have been with intent to commit mayhem, which is something different from the crime of assault, and the court further say: “ What the true construction of the statute is, is immaterial in this case, unless the evidence warranted the inference, or .unless the jury might have found from the evidence that the prisoner, when he struck the deceased, intended to commit some felony other than the homicide with which he is charged.” (p. 608.)

It was found in that case that the prisoner did not intend to

Such an assault did not constitute “ a felony upon the person or property ” of W. within the meaning of section 240 of the Penal Law. (Foster v. People, supra; People v. Hüter, 184 N. Y. 237 , 20 N. Y. Crim. 36 ; People v. Spohr, 206 N. Y. 516 .)

It is also urged that the judgment is void because the court instructed the jury on Sunday and the judgment of conviction was entered on that day.

The case was tried on Saturday and submitted to the jury at 11 p. m. on that day. The jury continued in deliberation until after 12 o’clock, when they came into court and stated that they were unable to agree upon a verdict and asked to be informed of the punishment prescribed for a person convicted of assault in the first degree. Counsel for defendant then asked the court to charge the jury that the defendant cannot be found guilty of assault in the first degree, and the court refused to make the charge as hereinbefore stated. The jury retired but soon returned with a verdict against the defendant which was received. The defendant then waived any delay in pronouncing sentence and sentence was pronounced.

It is provided by section 5 of the Judiciary Law (Cons. Laws, chap. 30) that “ A court shall not be opened, or transact any business on Sunday, except to receive a verdict or discharge a jury. * * * ”

The statement made to the jury in answer to their request and the refusal of the court to charge the jury as requested by the defendant’s counsel were incidental to the deliberation by the jury and the lawful receipt of their verdict. Any action taken by the trial court contrary to the provisions of the Judiciary Law as quoted was with the approval and acquiescence of the defendant and such a waiver on his part as to

The judgment, of conviction should he affirmed.

IIiscock, Ch. J., Carduzo and Andrews, JJ., concur with Collin, J.; Bound and Crane, JJ., concur with Clase, J.

Judgment of conviction reversed, etc.