People v. Sobieskoda

The indictment in three counts charged defendant with the ■ crime of murder in the first degree in taking the life of Stanley Luczak on March 9, 1922. The first count charged that defendant, with the deliberate and premeditated intent to cause the death of Vincent Luczak, killed Stanley Luczak; the second count, which was withdrawn by the district ¿ttorney on the trial, charged that defendant, without a design to effect the

Up to the point of the actual killing the material facts are not in dispute. Vincent and Stanley Luczak were brothers. Stanley with his wife and children lived on a farm in the town of Bethany, Genesee county. Vincent and his wife Edna lived in the city of Buffalo. Defendant was a molder by trade. He also lived in Buffalo, but he had been out of regular work for some months before the homicide and his sister-in-law testified that he made moonshine whisky and drank and got drunk frequently during that period. From the statement of defendant, taken after his arrest, it appears that he knew the Vincent Luezalcs well and that he and Edna had had adulterous relations. Edna had reasons for desiring to rid herself of her husband beside her attachment to defendant. Beal property was owned by them jointly and his life "was insured for her benefit. The relations between defendant and Edna caused trouble and Vincent had threatened to shoot defendant.

Defendant says Edna and he formed a plot to have Vincent put out of the way, and she promised defendant to pay a man called Joe Gordon, whom defendant had retained for the purpose, $600 to kill Vincent. On this promised consideration Gordon undertook the job. Edna furnished $30 for the purchase of a revolver which Gordon bought in the presence of defendant from Max Oheiifitz about two weeks before* the homicide.

But Vincent was not killed. His brother Stanley was killed in these circumstances. On the day of the homicide Vincent and Edna took the train from Buffalo to Linden, a station about two and one-half miles from the Bethany farm. Defendant

The case was submitted to the jury under the Penal Law (§ 1044, subd. 1), which provides:

“ The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed:

“ 1. From a deliberate and premeditated design to effect the death of the person killed, or of another

The court properly instructed the jury: “ A person concerned in the commission of a crime, whether he directly commits the

On this theory, it was the dxxtv of the jury to convict defendant even if they foxxnd that Gordon, not having abandoned the design against Vincent, but following the suggestion of his own wicked heart, txxrned aside from the execution of such design and willfully killed Stanley. The court also charged the jxxry in sxxbstance that only if defendant and Gordon had abandoned their common purpose against Vincent, coxxld it be said that Gordon was acting independently and alone in shooting Stanley.

This was error. The qxxestion material to defendant’s guilt on this branch of the case was whether Stanley was killed in the prosecution and furtherance of the xxnlawfxxl purpose to effect the death of Vincent, not whether he was killed by Gordon while such xxnlawfxxl purpose xvas in existence (People v. Giusto, 206 N. Y. 67 , 73), even though the killing of Stanley was accomplished neither while defendant and Gordon were acting

If A and B start out together with the design to kill C, and while that design exists B kills D as a separate and distinct act not as a part of the offense designed against O, A is not guilty of the crime of murder in the first degree or of any crime, merely because he has murder in his heart, directed at G at the time of such killing. (Lamb v. People, 96 Ill. 73 ; Williams v. State, 81 Ala. 1 , 60 Am. Rep. 133 , 135; People v. Marwig, 227 N. Y. 382 .) But if A and B start out with an evil intention against C to take his life, and in the execution of such purpose either A or B kills D, it shall be no excuse to either to H say that the intention was to kill 0 and not the person killed. “ For the end of the act shall be construed by the beginning of it, and the last part shall taste of the first, and as the beginning of the act had malice prepense in it, and consequently imported murder, so the end of the act, viz., the killing of another, shall be in the same degree, and therefore it shall be murder.” (Reg. v. Saunders, Plow. 473, 474; People v. Miles, 143 N. Y. 383 , 388.) “ Where a number of persons are acting together in the commission of the felony, a homicide perpetrated in-furtherance of the felony is deemed to be within the common purpose and all are alike responsible in law therefor.” (People v. Giusto, supra.)

The burden was on the People to establish that defendant was a principal in the killing of Stanley with malice aforethought. By a process of exclusion, we may eliminate from consideration several possible theories of defendant’s guilt so far as they are developed by the record now before us. (a) If Gordon shot at Vincent, intending to wound or kill him, and by a false aim killed Stanley, without a design to take his life, defendant would be guilty of murder in the first degree. (People v. Miles, supra.) But the evidence does not suggest that Gordon’s aim was directed at Vincent. On the contrary, he

Three theories of guilt are fairly presented by this record: (a) If the common purpose of defendant and Gordon included, either in its inception or at any time before the shooting of Stanley, not only the death of Vincent, but also the purpose to resist to the last degree, even to the taking of human life, all who interfered with the execution of that design; if they had formed a general resolution against all opposers; against all who stood in the way of their murderous project; then they were both guilty of murder in the first degree if the killing of Stanley was due to his interference with such purpose and design. The evidence that both remained on the scene when they were driven away from the house, in ambush, with their deadly purpose unaccomplished, would authorize the jury to infer that the full purpose of the combination was still in force although it had not been carried out, and that the killing of Stanley was in the execution of their common illegal purpose against Vincent. (Ruloff v. People, 45 N. Y. 213 ; People v. Wilson, 145 N. Y. 628 , 631; People v. Marwig, supra.) (b) If defendant and Gordon formed the deliberate and premeditated design to take the life of the man in the road with the gun, who proved to be Stanley, before Gordon shot at him, both would be guilty of murder in the first degree. Stanley was armed, looking for the invaders, with the seeming purpose of turning his

“The killing of a human being * * * is murder in the first degree, when committed: * * *

“ 2. * * * 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.” (Penal Law, § 1044, subd. 2.)

If a literal construction is given to the words “ without a design to effect death,” it might be said that this subdivision includes only such killings as are unintentional or accidental,' but the purpose of the law plainly is merely to make the element

On the other hand, (a) if Gordon shot Stanley after the explosion of the plot or the abandonment of the common design against Vincent, defendant would be free from criminal responsibility. But the evidence points to the continued existence of the common design, (b) Gordon may, notwithstanding the existence of the design against Vincent, have shot at the man in the road, with no intention of killing Vincent, nor in the furtherance of the common purpose, but for his own purpose. For that act, defendant would not be criminally responsible. While it may be urged that the evidence is very slight that Gordon formed and executed such a fresh and independent design, outside of the common design, the fact that the possibility was a remote one makes it no less a hypothesis to be presented to the jury. Gordon was defendant’s agent only in the prosecution of the design against Vincent. Only what Gordon did in the execution of that design is chargeable against defendant. (People v. Giusto, supra.) Defendant’s moral guilt, as confessed by him, is clearly established. His guilty design against Vincent was the remote, if not the proximate cause of the killing. Yet, however bad his moral predicament, his legal guilt may be defined only in terms of law.

It is the duty of this court to “ give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights.” (Code Crim. Proc., § 512.) The district attorney urges that defendant’s guilt is so clearly established that Iiis substantial rights were not affected by these errors. But the question of substantial right is not the abstract question of guilt or innocence. A guilty man is entitled to a fair trial and a trial is not fair if the verdict may be related to errors in the judge’s charge. Error is substantial when we can say that it tended to influence the verdict. For should we “ sustain a conviction erroneously secured on one theory on the conjecture that it would have followed just the same if the

With the best intention to deal fairly with a defendant, the trial court may fail to state clearly the principles of law which should control the conduct of the jury and the legal distinctions which they should apply in arriving at their verdict. (People v. Odell, 230 N. Y. 481 .) A proper comprehension of the law to be applied to the facts as established by the evidence may well have been lacking in the minds of the jury when they withdrew for final consideration. Defendant’s counsel, with his eighty requests to charge, some of them raising the points herein discussed, many of them irrelevant abstractions only, did not aid in clarifying the issue. The basic error on which all the court’s instruction rested, he., that the test -was the mere existence of a common design to kill Vincent when Stanley was killed, given finally when some of the jurors were considering a verdict of guilty in the second degree, seems to have been highly prejudicial to the defendant. As the material fact of the existence of such common design to kill was not in dispute, it amounted practically to a direction to find defendant guilty of murder in the first degree as charged in the indictment, without considering at least one substantial theory of the defense.

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

Hiscock, Ch. J., Hogan, McLaughlin and Andrews, JJ., concur; Cardozo and Crane, JJ., dissent.

Judgment reversed, etc.