People v. Cooke , 292 N.Y. 185 ( 1944 )

The defendants have been found guilty of killing McKinley Kettles from a deliberate and premeditated design to effect his death. On the night of the killing, Kettles, a youth of seventeen, was chased by a crowd of other youths and, in front of his home, some of them stabbed him and the wounds caused his death. The People produced evidence, which, though contradicted, the jury could accept as true, that Cooke, then eighteen years old, and Sealy, twenty years old, inflicted the wounds. Upon this appeal no sufficient ground is shown for disturbing the finding of the jury that the defendants were the slayers. Perhaps the most serious question to be decided upon this appeal is whether the charge of the Trial Judge adequately instructed the jury upon the question of intent to kill.

Judge DESMOND in his opinion has concisely stated the events which led to the killing. Earlier in the evening Sealy's eye had been cut by a youth who did not belong to Sealy's "crowd" or "gang". There is little doubt that Sealy's "crowd" resented the cutting as an indignity inflicted upon one of their own and were intent upon wiping out the indignity by inflicting injury, perhaps more serious, upon the assailant or upon an adherent of the assailant. The result was a fight or series of fights between rival neighborhood gangs. The intent to inflict serious injury may reasonably be inferred from the manner in which Kettles was chased and brutally stabbed with knives. Intent to kill is an essential element of murder in the first degree; intent to inflict serious injury does not suffice. Though perhaps it cannot be said that as matter of law the evidence is insufficient to justify a finding of intent to kill, I find it difficult to believe that all the crowd who chased Kettles, or even the youths who actually inflicted the wounds, had such an intent. The attack was made with knives, not pistols. Death was the result of a wound in the armpit which severed the axillary artery. It took place on the public street in the presence of the mother and sweetheart of the victim. There was no attempt at concealment. Men who have formed a deliberate and premeditated design to kill do not, ordinarily, pursue their intent in such manner, and a cut with a knife in the armpit does not ordinarily cause death. In such circumstances it was very important that adequate instruction be given to assist the jurors in their consideration of the question whether the wounds were inflicted with intent to effect death.

Correct general instructions relating to deliberation, premeditation and intent, were, I agree, given by the Trial Judge in his main charge. True, he did not point out that an intent to inflict serious injury would not suffice, but he had charged that intent to kill was necessary and he was justified at that time in assuming that the jury would understand his instructions and apply them properly to the evidence, especially since he was not requested to amplify his instructions.

After the jury had deliberated several hours it requested that the stenographer read again "your Honor's charge to the jury defining Murder 1st degree and Manslaughter 1st degree". The foreman added: "Would you make it easy, Judge, with particular emphasis on the word `intent' in both cases." In answer to the request the Trial Judge in effect reiterated to the jury his original charge relating to intent to kill as an element in the crime of murder, but apparently the trial court did not succeed in making it so "easy" that all could understand it, for later in the evening he received the communication quoted in the prevailing opinion.

I agree with my associates that "the first question was clear enough" and it cannot be disputed that the question whether "a premeditated act to cause serious injury but not necessarily to cause actual death, but which, however, results in actual death, * * * is the intent to kill" relates to a point of law which is decisive upon the issue whether these defendants are guilty of murder. The Code of Criminal Procedure, section 427, leaves to the trial court no discretion whether or not to give the information. The court must give the information requested, and where the court fails to give information requested upon a vital point no appellate court may disregard the error under section 542 of the Code of Criminal Procedure. Since intent to kill is an essential element in the crime of murder, and the question plainly showed that the jurors or some of them did not understand from the charge as previously given that intent to cause serious injury is not an intent to kill, it can certainly not be said that failure to give the information would not "affect the substantial rights" of the defendants. The only question which remains is whether the jury must have gleaned the required information from the charge as given, though the question was not answered unequivocally.

I concur in the conclusion that "it would have been better to make the unequivocal statement that the jury was not bound to presume an intent to kill from the intentional stabbing * * * but the thrice-delivered charge in this case, on the question of intent, was not incorrect in substance or in any important part thereof." The fact remains that after hearing the charge delivered twice the jurors asked further information. There is no reason to believe that delivery of the charge a third time removed any confusion or misunderstanding left after the charge had been delivered twice. At no place in that charge is there any statement, unequivocal or otherwise, that intent to inflict serious damage without intent to effect death is not the specific intent to kill which is an essential element of murder. True it is that the Judge read the statutory definition of murder and pointed out that design or intent to effect death is an essential element of that crime. Doubtless it follows logically that the killing of a human being with intent to cause serious injury but not to cause death would not constitute murder as defined in the statute — yet the jury asked specifically whether it would satisfy the statutory definition, and nowhere is that question answered, directly or indirectly.

The illustrations used by the court for his thrice-given definition and explanation of "intent" are not only far from the "happiest possible choices for that purpose" but indeed suggest that the inference of intent to effect death arises whenever death results from a premeditated act to cause serious injury. It is indisputable that in reply to the question propounded by the jurors the Trial Judge gave no instruction which he had not given before and which might even by implication answer the question asked by the jury or remove the doubt which still remained in the minds of the jurors or some of them. That was error which this court may not disregard.

Judgment should be reversed and a new trial ordered.

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

Judgments of conviction affirmed. (See 292 N.Y. 622.)