People v. Luscomb , 292 N.Y. 390 ( 1944 )

On the night of April 21, 1943, Ella May Luscomb was shot and killed at the home of her father. The fatal shot was discharged from a rifle then held by the defendant. The defendant was charged with murder in the first degree. The indictment contains three counts. In the first two counts the indictment charged that the killing was committed from a deliberate and premeditated design to effect death. In the third count the indictment charges that the defendant "willfully and feloniously shot and killed Ella May Luscomb * * * then and there being engaged in the commission of the crime of Assault in the second degree upon one Reuben Eck, one Ida Eck and the said Ella May Luscomb * * *." Upon the first counts the court charged all the grades of homicide. Upon the third count the court charged that if the jury found that the killing was committed by the defendant while engaged in the commission of an assault upon Reuben Eck the verdict must be murder in the first degree, but the jury might as a part of its verdict recommend that the defendant be imprisoned for the term of his natural life. The jury found the defendant guilty upon the felony count without such recommendation.

After the defendant was found guilty upon that count and sentence of death was imposed, the defendant's attorney moved to set aside the verdict upon affidavits of all the jurors to the effect that "it was the opinion and idea of the jury that the verdict as rendered would carry to the defendant life imprisonment or such reduction of the sentence as the court might see fit to impose." We are agreed that the motion was properly denied. The jurors cannot "properly be permitted to declare, with a view to affect their verdict, an intent different from that actually expressed by the verdict as rendered in open court." (Dalrymple v. Williams, 63 N.Y. 361, 363.) Argument based on such affidavits may be addressed to the executive. We may review only the judgment which is not affected by them. The only question which we may consider upon this appeal is whether the finding of the jury that the defendant killed his wife in the commission of an assault upon her father Reuben Eck is in accordance with the law and the weight of the evidence.

The relevant facts established by the evidence produced by the People are stated in the opinion of Judge CONWAY. The defendant was an unfaithful husband, an irresponsible father who habitually drank to excess. Because of his bad habits, his wife left him and returned to her father's home. He sent her a note begging her to come back. She refused. Then the defendant went to the father's home. He had drunk many bottles of beer in the afternoon and evening of that day. He carried a rifle. In the kitchen of her father's house he commanded her to return home. There was a "scuffle" and her parents hearing the noise went into the kitchen. There is evidence which the jury could accept, though denied by the defendant, that the defendant was "shaking" his wife and that as her parents came into the kitchen he released his wife and, pointing his rifle first at the father and then at the mother, he threatened to shoot them. It may be conceded that the defendant then and there committed an assault on them and if the death of the deceased had been the result of violence used by the defendantin order to accomplish that assault, the killing would have been committed "by a person engaged in the commission of * * * a felony" and would have constituted murder in the first degree (Buel v. The People, 18 Hun 487, affd. 78 N.Y. 492) as explained in People v. Huter (184 N.Y. 237). So, too, the killing would have constituted murder in the first degree if the defendant had killed either parent who was attempting to prevent him from continuing his assault on his wife. (People v.Giblin, 115 N.Y. 196; People v. Patini, 208 N.Y. 176;People v. Wagner, 245 N.Y. 143.) Here, however, the mother of the deceased frightened by the threat of the defendant, ran off and there is no evidence that the shot which killed the deceased was directed against Reuben Eck, the father of the deceased, or was intended to prevent the deceased from interfering with any assault against the father, or in order to carry out a design to assault the father.

On the contrary the testimony of Reuben Eck which established that the defendant assaulted him by pointing a gun at him threatening to shoot, establishes also that thereafter the defendant laid the rifle on a table, took off his jacket, threatening to "clean up the whole bunch of you." Eck tried to pacify the defendant, telling him that no one was at fault. The defendant said, "Rube, I don't think you are at fault. I have always liked you," and shook hands with Eck. Then the defendant picked up the rifle, turned to his wife, and threatened to kill her unless she went home with him. She refused and a few seconds thereafter she was killed by a bullet discharged from the rifle held by the defendant.

Perhaps the jury could find that even though the defendant put down his rifle and shook hands with Eck in friendly manner, yet that he did not withdraw his threats and that Eck still remained in fear that the defendant would carry out his threats if he interfered. It is clear, however, that the defendant was no longer pointing a gun at Eck and temporarily at least the assault against Eck had ceased. The question then is whether in any view of the evidence it can be said that the defendant killed his wife while he was committing an assault upon Eck.

We are told that even though the felonious assault on Eck was for the moment interrupted it had not ceased and that the court so held under analogous circumstances in People v. Giblin (supra); People v. Patini (supra); People v. Wagner (supra). In those cases the deceased attempted to come to the assistance of another who was at that time being assaulted and received a death wound in the attempt. In People v. Giblin the husband of the deceased was resisting an assault when the deceased came to his aid. In People v. Patini the defendant was assaulting Giovanni Vasta a brother of the deceased when the deceased Guiseppi came to his brother's aid. In its opinion inPeople v. Patini this court explained why in People v.Giblin it sustained a judgment convicting the defendant of murder in the first degree in the commission of a felony saying: "The evidence showed that the homicide was committed while the defendant was engaged in the commission of a felonious assault upon the husband of the deceased. A dispute had arisen between the husband and the defendant over the genuineness of a five-dollar bill; in the course of which the defendant drew his pistol upon the former. The deceased came into the store and, rushing to her husband's assistance, seized hold of the defendant from behind. In that position, he fired upon, and killed, her. We sustained the conviction of murder in the first degree, upon the theory that the deceased received her death wound in the attemptto aid her husband, upon whom the defendant was committing anunwarrantable assault." (p. 181.) (Italics through this opinion are new.) It thus appears that in People v. Giblin, at the time the defendant made the fatal assault on the deceased, his assault on her husband had not ceased or been interrupted and the violence which resulted in the death of the deceased was exercised in the furtherance of the original assault. In People v. Patini the circumstances were exactly similar except that there it might perhaps be said that the original assault was temporarily interrupted when the defendant turned his gun away from one brother and shot the brother coming to the rescue. The court, however, pointed out that even if the assault was "interrupted" it had not ceased, saying: "When, because of the threatened interference of the deceased, the defendant turned his gun away from Giovanni, the felonious assault was interrupted, but had not ceased; for the defendant, after having shot the deceased,turned back and shot Giovanni." (p. 180.) None of the circumstances which this court said justified the decision in those cases are present here.

Nor can support for the decision be found in People v.Wagner (supra). Again it appeared there that the deceased, Peter Basto, came to the rescue of Lulu Saddlemire while the defendant was striking her upon the head. "The defendant then had his hand upon the throat of Miss Saddlemire. He released his hold only when Peter Basto struck him a blow. At that moment thedefendant began the assault upon Peter Basto which ended in thelatter's death. Thus the fatal assault began at a moment when theassault upon Lulu Saddlemire was in progress." (p. 149.) In the case we are considering now it should be noted again that the defendant on the contrary had turned his gun away from Reuben Eck and Eck was in no present danger from the defendant and subject to no threat unless he thereafter should come to the aid of his daughter who was being assaulted. In my opinion a finding that the assault on Eck, though interrupted, had not ceased is without support in the evidence.

Even if, however, it could be said that the assault on Eck was merely interrupted and had not ceased or even if it could be said that it was in progress when the deceased was shot, because the fear inspired by the assault continued, a finding that the fatal assault on the deceased was committed in the commission of the assault on Eck would not be in accord either with reason or authority. It is not sufficient that the killing occurred while another felony is in progress. It must be perpetrated while the defendant is "engaged in the commission of * * * a felony." The killing must occur in the commission of the felony. In other words the fatal assault must be a part of the underlying felony. Thus in Buel v. The People (supra, p. 497) we said it is sufficient "if death ensued in consequence of that felony." The matter is considered at greater length in People v. Huter (supra, p. 243) where the court said: "A person who attempts or engages in the commission of a felony, is not only chargeable with express malice, but also with being perversely wicked, evincing a depraved mind and a disregard of human life, and if, while so engaged, he causes the death of a person, although unintentional, the Legislature has seen fit to enlarge the crime and make it murder in the first degree, so that, if a person engaged in the commission of a rape and in order to accomplish the act resorts to violence, from which death is unintentionally produced and which would be only manslaughter were it not for the malice, wickedness and intent to rape, yet by reason thereof it is made murder in the first degree. (Buel v. The People, 78 N.Y. 492. ) The same is true with reference to the unintentional killing of a person while engaged in the commission of a robbery, a burglary or an attempt to escape from imprisonment. There may be no intent to kill, but the violence having been perpetrated while engaged in the robbery, burglary or attempt to escape from imprisonment, it is murder in the first degree." There must, it was held, be an "independent felonious design." "By the same act one may commit two crimes, and to constitute murder in the first degree, as in the commission of a felony, it is not necessary that there should be an act collateral to or independent of that which causes the death; but if the act causing the death becommitted with a collateral and independent felonious design itis sufficient; thus, if the violence used to commit a rape or a robbery results in death the case is plainly within the statute, and so this court has held in the cases above referred to." (p. 244.) Thus, the killing of Ella May Luscomb was committed "in the commission" of an assault against Reuben Eck, her father, only if the act was committed with an "independent felonious design" in furtherance of the assault against Eck.

That rule has been applied by this court in People v. Moran (246 N.Y. 100) where it was claimed that an assault constituted the underlying felony. The evidence there showed that the defendant simultaneously assaulted two police officers and killed both. The fatal assault on each occurred when the assault on the other was in progress, but we held that the killing of the police officer for which Moran was on trial did not occur in the commission of an assault on the other unless it appeared that the deceased officer was killed while "intent upon rescue" of his fellow officer.

In the instant case the evidence shows indisputably that the defendant went to the home of Reuben Eck with the purpose of inducing or compelling his wife to return to his home. He may, perhaps, have intended to assault her if she refused. The assault by defendant on his wife's parents occurred during a heated dispute between the defendant and his wife and perhaps during an assault by defendant on his wife when her parents entered the room — probably to aid their daughter. Perhaps the assault on Eck may have been committed during and in furtherance of an attack on the deceased and to prevent them from interfering. It cannot possibly be found that the assault upon the deceased was committed to prevent her from interfering in the assault on Eck or with a "nefarious" intent to further that attack independent of the nefarious intent involved in the attack on the deceased.

The cited cases show that such an independent nefarious intent is an essential element of a "felony murder" and the language in the opinion of this court in People v. Moran which has been italicised by Judge CONWAY shows that the court reversed the conviction of a confessed and defiant murderer because there was no proof or finding of such intent. The judgment of conviction should be reversed and a new trial ordered.

LEWIS, DESMOND and THACHER, JJ., concur with CONWAY, J.; LEHMAN, Ch. J., dissents in opinion in which LOUGHRAN and RIPPEY, JJ., concur.

Judgment of conviction affirmed.