People v. Lytton , 257 N.Y. 310 ( 1931 )

Having expressed my views in People v. Joyce (233 N.Y. 61), I need not repeat them here. The majority has not agreed with me, so that settles it. Personally, I feel that when the charge is murder in the first degree, committed unintentionally while perpetrating another felony, the confession of the felony is not enough — there should be some other evidence that the felony was being committed.

The important proof in a felony murder is the felony, because this makes the act of killing murder in the first degree, even though the defendant did not intend to kill. The form of the indictment cannot obscure the reality. There are no degrees of crime in a felony murder; the felony being proved, it is murder in the first degree, and nothing else. The jury cannot convict of a lesser degree of the crime. The felony, be it larceny or burglary, must be proved beyond a reasonable doubt — so the court must charge the jury. Yet under this present rule the felony, be it burglary or larceny, may be established by the defendant's confession alone, whereas if he were being tried for the minor felony, such as burglary or larceny, he could not be convicted solely on his confession. Such inconsistency does not appeal to me. However, the other view has prevailed and is the law for this State.

POUND, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur with CARDOZO, Ch. J.; CRANE, J., concurs in memorandum.

Judgment affirmed.