People v. . Joyce , 233 N.Y. 61 ( 1922 )

I agree in the opinion of Judge HOGAN. There is another ground, however, upon which I think this conviction should be reversed. The defendant was convicted upon what is now commonly termed a felony murder. Under section 1044 of the Penal Law the defendant was convicted of murder in the first degree in having killed or participated in killing Adam Zittell while he, the defendant, was in the commission of the crime of larceny or robbery. The judge did not charge the jury in all the degrees of criminal homicide, but told them that the defendant was guilty of murder in the first degree or not guilty.

The only evidence against the defendant that he or his associate was committing or attempting to commit larceny or robbery was the defendant's confession. There was no evidence of anything being broken about the place, the store of Zittell, or of anything being stolen or any property found upon the defendant indicating that a larceny had taken place. Under section 395 of the Code of Criminal Procedure, a confession of the defendant can be given in evidence against him, but is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. In order to convict a defendant of the crime of murder in the first degree in having killed Zittell while in the commission of a felony, it was necessary for the People to prove by competent evidence the commission of or the attempt to commit the felony. How could the homicide occur in the commission of felony if the felony be not proved? The felony, that is, the larceny and robbery, could not be proved by the confession of the defendant alone. If the defendant were being tried for the collateral felony and his confession were the only evidence against him, an acquittal would be compulsory. InPeople v. Hüter (184 N.Y. 237, 244) this court said: "In order, therefore, to constitute murder in the first degree by the unintentional killing of another while engaged in the commission of a felony, we think that while the violence may constitute a part of the homicide, yet the other elements constituting the felony in which he is engaged must be so distinct from that of the homicide as not to be an ingredient of the homicide, indictable therewith or convictable thereunder." (See, also,People v. Spohr, 206 N.Y. 516, 521; People v. Patini,208 N.Y. 176, 180; People v. Marwig, 227 N.Y. 382, 386.)

If this defendant had been tried for murder in the first degree in having killed Zittell with premeditation and intent to kill, the finding of Zittell's body with the wounds upon it would have been sufficient corroboration to comply with section 395 of the Code of Criminal Procedure. (People v. Brasch, 193 N.Y. 46;People v. Roach, 215 N.Y. 592.) Under such a charge, however, the jury could have found the defendant guilty of murder in the first degree or in the second degree or manslaughter in the first degree or second degree and the court would have been compelled to so charge them. In the case where the killing is done while in the commission of a felony there can be but one verdict if guilty, and that murder in the first degree. Premeditation and intent are no part of such a charge. It seems right and fair, therefore, that the felony committed or attempted resulting in death should first be established by evidence sufficient at law to convict of such felony. As stated, a confession alone without any corroboration as to the commission of the collateral felony is insufficient.

While this point has not been directly passed upon so far as I can find in this state, yet in similar cases there has been other evidence corroborating the confession as to the commission of a felony at the time of the killing. Such corroboration consisted of evidence showing breaking of doors or windows or the possession of stolen property or other marks or incidents indicating that a larceny or burglary had been attempted or committed. (People v. McGloin, 91 N.Y. 241; People v.Meyer, 162 N.Y. 357, 370; People v. Giusto, 206 N.Y. 67,77; Wistrand v. People, 213 Ill. 72; Andrews v. People,117 Ill. 195.)

As before stated in this case we have these two things and these two only, the confession of the defendant and the finding of Zittell's body in his store. The defendant in his confession says that he and his associate entered the store with intent to rob or steal. There is no other evidence of larceny or robbery except this confession. To my mind the proof is utterly lacking under section 395 of the Code of Criminal Procedure to establish the commission of a felony separate and distinct from the killing and the defendant should not have been convicted for this reason of murder in the first degree for having killed Zittell while in the commission of a felony. The finding of the body of Zittell was sufficient corroboration of the confession to make out murder in the first degree committed with premeditation and deliberation, but here the jury would have the right and the privilege to convict the defendant of any one of the four degrees of felonious homicide.

The finding of the body alone would not be corroboration of larceny or robbery or sufficient to sustain a conviction of murder in the first degree under the charge of the court that the jury must convict in such degree if they found the defendant guilty of any crime.

For these reasons I think the judgment of conviction should be reversed.

HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur with HOGAN, J.; CRANE, J., reads concurring opinion, with whom McLAUGHLIN, J., also concurs.

Judgment of conviction reversed, etc.